Tweed Shire Council v Hancomatic Music Pty Ltd - [2007] NSWCA 350

NEW SOUTH WALES COURT OF APPEAL

CITATION: TWEED SHIRE COUNCIL v HANCOMATIC MUSIC PTY LTD & ANOR HANCOMATIC MUSIC PTY LTD v LETITIA HANCOCK HANCOMATIC MUSIC PTY LTD v ANTHONY RICHARD HANCOCKHANCOMATIC MUSIC PTY LTD v LUKE HANCOCK bnf ANTHONY HANCOCK [2007] NSWCA 350

FILE NUMBER(S):
40021/2006
40022/2006
40230/2006
40030/2006
40031/2006
40032/2006

HEARING DATE(S): 22, 23 and 24 May 2007

JUDGMENT DATE: 6 December 2007

PARTIES:
TWEED SHIRE COUNCIL
HANCOMATIC MUSIC PTY LTD & ANOR
LETITIA ARAGON HANCOCK
ANTHONY RICHARD HANCOCK
LUKE HANCOCK bnf ANTHONY HANCOCK

JUDGMENT OF: Mason P McColl JA Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 71/2002
DC 72/2002

LOWER COURT JUDICIAL OFFICER: Phegan J

LOWER COURT DATE OF DECISION: 9 December 2005

COUNSEL:
P Taylor QC/ J Castaldi - Tweed Shire Council
P Deakin QC/B Shields - Hancomatic Music Pty Ltd
D Wheelahan QC/P McGuinness - Hancock

SOLICITORS:
Morag & Agnew - Tweed Shire Council
Curwood Partners - Hancomatic Music Pty Ltd
Bruce Peters - Hancock

CATCHWORDS:
APPEAL AND NEW TRIAL – Appeal - general principles – interference with judge’s findings of fact – functions of appellate court – findings on issue of negligence – generally – whether safety glass was required to be installed by Ordinance and/or Australian Standard – where trial judge found construction of sliding glass door to be after Ordinance and/or Australian Standard came into existence – finding of fact overturned on appeal
TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – owner of premises – partly commercial premises – motel and reception – sliding glass door to reception made of annealed glass – child ran into sliding door – child was son and brother of plaintiffs – whether there was a failure to construct building in accordance with Ordinance and/or Australian Standard – building found to be constructed before Ordinance and/or Australian Standard came into effect – relevance of Ordinance and/or Australian Standard to negligence
TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – where council gave approval for building – whether council had a duty to advise or require plaintiffs’ and owners’ compliance with Ordinance – Local Government Act 1919, s 310, s 314
TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – whether owner under a duty conduct a safety audit when renovations carried out – duty is not so specific – duty is to take reasonable care in the circumstances – where no knowledge of dangers of annealed glass – where annealed glass not a dangerous defect

LEGISLATION CITED:
Halsbury’s Laws of Australia
Law Reform (Miscellaneous Provisions) Act 1946
Local Government Act 1919

CASES CITED:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Ahluwalia v Robinson [2003] NSWCA 173
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Balesfire Pty Ltd t/as Gutter Shop v Adams [2006] NSWCA 112
Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8, 148 IR 123
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Brock v Hillsdale Bowling and Recreation Club Ltd [2007] NSWCA 46
Calvin v Carr & Ors [1977] 2 NSWLR 308
David Jones Ltd v Bates [2001] NSWCA 233
Drotem Pty Ltd v Manning [2000] NSWCA 320
J & V Pesl Pty Ltd v Ray Smith Tractors Pty Ltd [2007] NSWCA 74; (2007) Aust Torts Reports 81-883
Johnson v Johnson (NSWCA, 10 September 1991, unreported
Jones v Bartlett (2000) 205 CLR 166
Leichhardt Municipal Council v Montgomery [2007] HCA 6, (2007) 233 ALR 200
New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879
North Sydney Council v Plater [2002] NSWCA 225
Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449
Sakoua v Williams (2005) 64 NSWLR 588
Sibley v Kais (1967) 118 CLR 424
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
Sutherland Shire Council v Heyman (1984) 157 CLR 424
Wheat v E Lacon & Co Ltd [1966] AC 552
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wyong Shire Council v Shirt (1979) 146 CLR 40

DECISION:
Uphold all appeals.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40021/06
CA40022/06
CA40230/06
CA40030/06
CA40031/06
CA40032/06
MASON P
McCOLL JA
BELL J
Thursday 6 December 2007

TWEED SHIRE COUNCIL v HANCOMATIC MUSIC PTY LTD & ANOR
(3 appeals)
HANCOMATIC MUSIC PTY LTD v Letitia Aragon HANCOCK
HANCOMATIC MUSIC PTY LTD v Anthony Richard HANCOCK
HANCOMATIC MUSIC PTY LTD v Luke HANCOCK bnf
Anthony HANCOCK

JUDGMENT

THE COURT: These appeals arise from a judgment of his Honour Judge Phegan in which he awarded three members of the Hancock family, Anthony and Letitia and their son Luke, damages of $340,522.77, $473,558.88 and $55,400 respectively for psychiatric injury consequent upon the death of their son and brother, Ryan Aragon Hancock.
At issue are questions of duty of care and breach touching the liability of Hancomatic Music Pty Ltd (“Hancomatic”) and the Tweed Shire Council (“the Council”) with respect to the type of glass installed in certain premises at the time of the accident. Hancomatic was the owner of the premises and it alone was sued by the plaintiffs. It was awarded a full indemnity from the Council on the grounds of either a breach of duty to Hancomatic or as a joint tortfeasor that would, if sued by the plaintiffs, have been liable to them.
Background and issues
At about 4pm on 3 March 1999 Ryan Hancock, aged six years, ran into a glass sliding door leading into the motel reception area at premises known as the Town Motel and Eatery in Wharf Street, Murwillumbah. The glass shattered severely lacerating his neck and severing his carotid and jugular blood vessels. He died approximately 35 minutes later. The glass in the door was annealed glass.
Ryan’s father and mother, Anthony and Letitia Hancock, were close by when the accident happened. They ran to Ryan’s aid. His brother, Luke, who was then aged 7, was running behind him. Each plaintiff brought proceedings against the owner of the premises, Hancomatic, seeking to recover damages in relation to the injuries they claim to have suffered as a consequence of the circumstances in which Ryan died. They asserted that various duties of care had been breached by Hancomatic because annealed glass, rather than safety glass, had been used in the reception area door.
It was common ground at trial that the glass door had been constructed when Hancomatic redeveloped the Wharf Street premises in the period 1971 – 1973. The redevelopment involved refurbishing an existing building to create a shopping complex fronting onto Wharf Street to the south. The shopping area included the motel reception area. The other aspect involved constructing motel units at the north end of the property.
During the period of the redevelopment, the statutory regime relating to the characteristics of glass to be used in glass doors in commercial premises significantly altered. In the early 1970s building regulation was controlled by Pt XI of the Local Government Act 1919 (ss304-319) and Ordinance No 71. (See generally Wilcox, The Law of Land Development in New South Wales (1967) Law Book Company at Chapters11-14. Ordinance 71, cl 44C relevantly stipulated that safety class shall be used in … every glass door” (cl 44C(b)(i)). The clause was inserted into Ordinance 71 (Building) by Government Gazette No 1 7/1/72, taking effect from 1 July 1972.
Further, Australian Standard AS1288 (Installation of Glass in Buildings), which provided for limits to areas which could be glazed with annealed glass, was published in 1973. The 1973 Australian Standard, AS1288 was given statutory force by regulations made under the Local Government Act 1919. According to the expert evidence at trial none of the sliding doors at the Wharf Street premises, including in the reception area sliding door, was within the maximum permitted area in which annealed glass could be used (Red 52K. References to “Red” relate to Red Book in 40021/2006.).
The plaintiffs’ further amended statements of claim pleaded that the premises, an expression defined by the pleading to include all the development on the Wharf Street site, had been completed in or after July 1972. There were numerous particulars of Hancomatic’s alleged breach of duty, one of which was that Hancomatic had failed to construct the motel reception area in accordance with cl 44C. This allegation against Hancomatic as builder raises issues that include:
•whether Hancomatic was liable by virtue of some non-delegable duty of care or vicariously for any fault on the part of its building contractor;
•whether the doors were installed after 1 July 1972 (the date that cl 44C commenced);
•whether negligence was established by mere non-compliance with cl 44C or otherwise on the evidence.
The plaintiffs’ respective verdicts did not turn upon findings of breach against Hancomatic as builder or as the principal vicariously liable for the negligent conduct of its builder. These bases of liability are, however, raised by way of notice of contention filed on behalf of the plaintiffs.
The plaintiffs succeeded in the District Court because the judge found that Hancomatic had negligently failed to conduct a safety audit that would have revealed that the glass in the sliding door was dangerous to the public, leading to its replacement with safety glass. A “duty … to make appropriate inquiries and conduct a safety audit” was found to have arisen when Hancomatic undertook substantial renovations in 1997, if not before (Red 56). This basis of claim is hereafter referred to as the “safety audit breach”. These findings of duty and breach against Hancomatic were not based on any conclusion that the glass was dangerous and/or non-compliant with statutory requirements when first installed.
It was only for the purpose of Hancomatic’s Cross Claim against the Council that the judge found that the door was installed after 1 July 1972 in breach of cl 44C of Ordinance 71.
Hancomatic challenges the finding that it had a duty of care that extended to a safety audit as well as the finding of breach.
Hancomatic denied that it had been negligent in any respect.
In defence to the allegation that the premises had been completed in or after July 1972, Hancomatic pleaded that it had acquired four shops in Wharf Street, Murwillumbah in or about November 1968 and that, on or about 26 August 1971, Tweed Shire Council had granted development and building approval to it to alter the shops, inter alia, by partially demolishing one and constructing an office/reception area and driveway. Hancomatic asserted that the alterations were carried out after August 1971 and that the door into which Ryan ran was at the entrance of the office and was constructed as part of the alterations completed after August 1971. The defence did not specify when Hancomatic said the door was constructed.
Hancomatic filed a cross-claim against Tweed Shire Council in which, for the limited purposes of the cross-claim, it repeated the allegations in paragraphs 1 to 8 of the further amended statement of claim, which included the allegation that the premises were constructed after 1 July 1972. The cross-claim also asserted that the Council approved plans which included the construction of the motel reception area in August 1971. Hancomatic’s case against the Council was based on the premise that the motel reception area was constructed after cl 44C or AS 1288–1973 came into effect and that the Council had been negligent in failing to require that work to comply with those provisions.
Hancomatic also cross-claimed against AR Hancock & Co Pty Ltd seeking to recover indemnity and/or contribution in the event it was held liable to the plaintffs. That cross-claim was settled in the course of the trial on terms which were not disclosed.
These pleadings and the conduct of the parties at trial in calling evidence directed to the issue of when the motel reception area was constructed with the annealed glass doors show that there is no injustice in addressing the matter raised in the notice of contention. The plaintiffs had squarely pleaded that the premises were completed “in or after July 1972”, an allegation denied by Hancomatic in its Defence.
In this Court most of the attention was directed to the notice of contention, especially the matter of dating the relevant building work.
It must be recorded at the outset that Hancomatic was not sued by the plaintiffs on the basis of a duty of care as occupier of the premises. Hancomatic was not the occupier at the time of the accident. The occupier was a company owned and controlled by two of the plaintiffs, Mr and Mrs Hancock. That company, A R Hancock Pty Ltd, had become the lessee of the premises in 1997 from Hancomatic in circumstances set out below.
Had the plaintiffs claimed against A R Hancock Pty Ltd the claim could and would have focussed upon what ought reasonably to have been done in all the circumstances on or before 3 March 1999. Such a claim could not have been defeated by the defendant pointing to the dangerous state of the premises having been created by a third party prior to the commencement of its lease in 1997.
But such a claim would have involved exploring the fault of the lessee, a company owned and controlled by the plaintiffs Anthony Hancock and Letitia Hancock. Leaving aside the obviously distressing nature of any such inquiry to Ryan’s grief-stricken parents, the claim would undoubtedly have thrown up issues of contributory negligence not to mention a potential claim for contribution (cf Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424).
Instead, the plaintiffs brought a different claim against a different defendant. The defendant, Hancomatic, was the owner and the lessor of the premises at the time of the accident. This, however, was not the entire basis of the claim in either of its manifestations. More to the point, Hancomatic’s status as lessor at the time of the accident meant that it was not a candidate for liability based upon occupier’s liability absent some finding that the lease arrangement unusually left Hancomatic with sufficient legal control to render it a joint occupier with its lessee (see Wheat v E Lacon & Co Ltd [1966] AC 552, Balesfire Pty Ltd t/as Gutter Shop v Adams [2006] NSWCA 112 at [47]).
There was no dispute that the motel units were constructed in 1973. However, a substantial issue at trial was whether the motel reception area was constructed before or after 1 July 1972. Without, at this stage, descending into specifics, we note that the evidence concerning when the motel reception area was constructed was circumstantial. The degree to which it was circumstantial can be demonstrated by the fact that in resisting the Hancocks’ claim, Hancomatic could point to evidence supporting the proposition that the motel reception area was built before 1 July 1972, while in pursuing its claim against the Council it could cogently argue that it was constructed after that date.
These appeals
There are three appeals brought by the Council, relating to the verdicts recovered by Mr Hancock (40021/06), Mrs Hancock (40022/06) and Luke Hancock by his next friend (40230/06). In each appeal the Council seeks to have the verdict against it on Hancomatic’s Cross Claim set aside and a verdict entered in its favour. The Council challenges the judge’s conclusions on Hancomatic’s Cross Claim. It also contends that the plaintiffs should have failed in their respective claims against Hancomatic.
Hancomatic has brought appeals against Mrs Hancock (40030/06), Mr Hancock (40031/06) and Luke Hancock by his next friend (40032/06). In each appeal Hancomatic seeks to set aside the verdict against it on the plaintiff’s claim and to have a verdict entered in its favour.
The plaintiffs support the reasoning of the primary judge, but they also propound by way of notice of contention an alternative basis of Hancomatic’s liability. The alternative claim is that Hancomatic is liable because the door was installed by or on its behalf after 1 July 1972, in breach of cl 44C and therefore (it is said) negligently.
Since Luke Hancock’s verdict was $55,400 it is necessary and appropriate for leave to be granted in the two appeals in which he is a respondent.

The facts in detail

The following statement of the case is substantially taken from the primary judge’s reasons. However, no doubt because of the way his Honour understood the issues, some of the critical factual findings appeared in sections of the judgment in which his Honour dealt with the plaintiffs’ case against Hancomatic and some in the section dealing with Hancomatic’s cross-claim. We have sought to consolidate the critical factual findings while identifying those parts of the judgment in which they originally appeared. We have also included references to aspects of the evidence we understand to have been uncontroversial and which assist in understanding aspects of his Honour’s reasons. In a later section of these reasons, we deal in more detail with aspects of the evidence with which his Honour did not deal, but which we have considered in the course of exercising our rehearing function.
Hancomatic was formed to conduct a business to be run by Howard Hancock, Anthony Hancock’s father, involving the supply and maintenance of jukeboxes, pinball machines and pool tables (Red 34M-N).
Hancomatic purchased the Wharf Street premises in November 1968. At the time of purchase, it consisted of four adjacent shops fronting onto Wharf Street. Wharf Street faced south. The Golden Spot Café, the shop at the western end of the complex, consisted of a snack bar and a take-away food outlet. There was an amusement parlour behind the snack bar in which machines owned by Hancomatic were installed. Behind the amusement parlour was a storage area where Hancomatic kept other machines available for rental. A real estate agency, Les Noble Real Estate, occupied the easternmost section of the premises (Red 34S-X).

After Hancomatic purchased the premises, it decided that an unused area to the north of the premises would be developed into motel units to be accessed by a driveway through part of the area occupied by the real estate agency. Howard Hancock undertook the redevelopment in a joint venture with a business associate, Jan Jonas.

The primary judge described the evidence concerning the redevelopment as “fragmented and in many respects obscure”. This was the result of a number of factors. Mr Jonas had died in 1992. Howard Hancock was 74 years old when he gave evidence. The primary judge described his memory as “fading”. He was also in poor health. The primary judge concluded that Mr Hancock was not an untruthful witness and that “in some respects his frankness went against his own interests”. His Honour concluded that the unreliability of Mr Hancock’s evidence was primarily a consequence of his poor memory and general lack of direct involvement in the Wharf Street premises (Red 60U).
There were also “large gaps” in documentary records which the primary judge described as only partly filled by the evidence of other witnesses who had been directly involved in aspects of the redevelopment such as two builders, Messrs Robert Hurst and Albert Lindsay, who gave evidence in the plaintiffs’ and defendant’s cases respectively and Mr Donald Buckley, the Council’s Director of Environment and Community Services who had joined the Council as a district health and building inspector in May 1972 (Red 35).

As we have said, the area where Ryan was fatally injured was created as part of the redevelopment. One of the key factual controversies at trial was when the Council gave approval for the area of the redevelopment which included the reception area and when, irrespective of the date of approval, the reception area was constructed. The primary judge noted that there was no dispute that the development proceeded in at least 2 stages, one involving redevelopment of the shopping complex and the other confined to the construction of the motel. However, his Honour lamented, there was almost no evidence regarding the renovation of the motel reception area where the accident happened, and no reliable evidence of when and by whom that aspect of the work was undertaken (Red 36-37).

Howard Hancock sought Council permission to carry out interim development in respect of a proposed development of shops and a motel on 8 March 1971 (Blue 1/5).
On 15 March 1971, the Shire Clerk wrote to Mr Hancock giving approval in principle to the work subject to compliance with building regulations (Blue 1/7). At that time Mr Ray Abernethy, an architect, prepared a set of “working drawings” dated April 1971 (the “Abernethy plans”).
We interpolate that Mr Abernethy submitted the plans to the Council (marked to the attention of Gary Smith) under cover of an undated handwritten note with the request that Mr Smith “have a look at them and let me know what you think” (Blue 1/9). It was common ground on appeal that the plans which accompanied Mr Abernethy’s note were dated April 1971 and comprised at least two sheets, one (WD 1) being the Foundation and Drainage Plan, and the other (WD 2) being the Ground Floor Plan (Blue 1/56-57). We shall return to the detail of those plans later in these reasons.
Mr Abernethy lodged a building application for the motel and shopping complex on 10 June 1971. On 18 June 1971 the application was assigned number 212/71.
On 9 August 1971, Mr Hancock wrote to the Council asking for advice as to what alterations had to be made to the “submitted plans to suit Council requirements for a motel and shopping complex in Wharf Street Murwillumbah” (Blue 1/13). On 16 August 1971, the Shire Clerk wrote to Mr Hancock advising that the plans as submitted did not comply with the requirements of Ordinance 71 relating to the distance of the building from the side boundary (Blue 1/14).
On 20 August 1971, Mr Abernethy wrote to the Council advising that Mr Hancock had decided he would prefer to withdraw the application on the motel section of the development with a view to seeking approval at a later date but that in the meantime the application concerning the shopping complex would proceed. We note that that letter bears a handwritten notation “plans for shopping complex only approved (signature) 31/8/71”(Blue 1/15).
The primary judge said the Council’s Building Register recorded Council approval to the development of “Motel + Shops” on “26 June 1971”, (Red 63) but we note this appears to be a typographical error (or a misreading of the Register – exhibit XD3). It was common ground, and his Honour so found, that the approval was given on 26 August 1971 (Red 64). That date appears on the copy of the Building Register which became exhibit XD3 at trial and in the section of the building application form marked “For Council use only”, where the following appears:
“Approved 26-8-71. This approval is for shopping complex only …” (Blue 2/146)
Mr Buckley gave evidence that the Council did not mark plans themselves with a formal “approved” stamp at the time. As his Honour found, (Red 36F) the approval was indicated on the plans by endorsement, in the form of the various stamps the Abernethy plans bore which imposed conditions and notified matters requiring Council approval during the building process. The Abernethy plans also bore a red line ruling off the motel section with a notation “motel section not approved P.D.”. “P.D.” was a Mr Denton, who was Mr Buckley’s supervisor at the Council (Red 34-35).
We note that the shopping complex approved in August 1971 included the motel reception area (Blue 2/56-57). It is apparent, therefore, that the 1971 approval extended to the area where the accident occurred. Although the primary judge did not make an express finding to this effect, it is implicit in his later conclusion that the approval of the motel section in 1972 did not extend to the motel reception area “whose redevelopment had been approved in 1971” (Red 67).
The first builder to work at the Wharf Street premises during the relevant period, Mr Hurst, was called by the plaintiffs. He was hired by Jan Jonas to undertake the refurbishment of the shopping complex area. According to him his work was confined to the “take-away place” which was a reference to the Golden Spot Café, the restaurant, fun parlour and kitchen. He undertook that work in late 1971 and early 1972. He said he did not use plans and that Mr Jonas told him what work he was to do.

When asked whether he had undertaken any renovation of the area on the western side of the driveway, including the motel reception, Mr Hurst answered “definitely not”. His evidence was that he could not remember any corridor of the kind depicted on the working drawings which led from the motel reception area to the snack bar and passed between the restaurant on the southern side and the kitchen on the northern side. According to his memory there was no corridor, and only one wall, between the restaurant and the kitchen and the internal entrance to the motel reception area was sealed off (Red 37).

The primary judge made the following assessment of Mr Hurst (Red 37).
Some aspects of Mr Hurst’s evidence were unreliable. It is difficult to accept, for example, that he saw no plans given the fact that the Abernethy drawings were in existence at the time he commenced work. It is equally difficult to accept his evidence of the absence of any corridor of the kind depicted in working drawing 102/3. However, what is difficult to reject is his categorical denial that he played any part in the renovation of the motel reception area. It is possible that the area remained sealed off from the restaurant and kitchen when Mr Hurst was on site. (emphasis added).
It is convenient to record, at this juncture, that the Council submitted that the primary judge’s acceptance of Mr Hurst’s denial that he participated in the renovation of the motel reception area was contrary to compelling inferences and that this Court should find that, more probably than not, Mr Hurst renovated the motel reception area between 1971 and early 1972.
In May 1972, a second set of drawings, on this occasion prepared by Howard Hancock’s brother, Robert Hancock (the “Hancock drawings”), was submitted to the Council. The primary judge found that the layout of the shopping complex “closely resembled” the layout in the Abernethy drawings, but the motel section “had been redrawn in order to meet the earlier objections raised by the Council”. The endorsements on the Hancock drawings (102/6 and 102/7) were signed off with the initials “DRB”, which Mr Buckley identified as his (Red 36). Robert Hancock was not called at the trial. There was no explanation for his absence, but no Jones v Dunkel point was taken in this respect.
Mr Buckley joined the Council in May 1972. He gave evidence that the plans for the motel section were submitted to him for approval and bore endorsements in his handwriting. The primary judge inferred from the fact that Mr Lindsay (with whom Hancomatic entered into a building contract dated 7 June 1973) was not approached until late 1972, and the building contract with him was not signed until 7 June 1973, that the plans for the motel section were approved sometime after 1 July 1972 (Red 64V). There was no evidence of any communication of the approval of the motel section to Hancomatic, save for the endorsements which appeared on Hancock drawings 102/6 and 102/7 (Red 68).It is convenient to record at this stage, although the primary judge did not make use of this evidence, that Mr Buckley first visited the premises on 8 July 1973 to inspect the steel footings for the slab (Blue 2/182).
The primary judge noted that there was no record in the Council’s Building Register of any application by Mr Hancock or Hancomatic subsequent to that lodged in June 1971 (Red 63-64). His Honour concluded that in the circumstances of the approval of the shopping complex only, he could not be satisfied that the Register could be relied upon as the only source of evidence with regard to the approval process. He held that even if formally the “development” was “approved” as recorded in the Register, subsequent events were sufficient to “establish a basis upon which the Council’s role in the motel development, as distinct from the renovation of the shops, can be regarded as part of a separate and subsequent process which … extended beyond, and … commenced after, 1 July 1972” (Red 64).
Hancomatic called Mr Lindsay. The specifications attached to the contract included copies of Hancock drawings numbered 102/3 and 102/4 which the primary judge described as “the shopping complex including the motel reception area”, as well as 102/6 and 102/7, which the primary judge described as the “motel section”. However, his Honour noted, the description of works in the contract referred only to “five units” and to drawings numbered 102/6, 102/7 and 102/8 (Red 37). In fact, the contract specifies the work to be performed as:
Completion of ten units to detail no 102/6 102/7 102/8 and specifications approved by Tweed Shire Council. (Blue 2/160)
A document entitled “Minimum specification of Ten Motel Units at 2, 5, 7 at 9 Wharf Street, Murwillumbah for Hancomatic … Builders Copy to be produced on Demand” was attached to the Contract (Blue 2/172).
Mr Lindsay gave evidence that he only constructed the motel units and did not perform work in the shopping complex area. One of the Hancock plans (102/3) showed two lines across the north end of the driveway captioned “existing wall to be removed”. Mr Lindsay’s recollection was that throughout the time he worked on the site, there was no wall at that point.
The primary judge observed that while Mr Lindsay was “quite firm in his evidence that he did not undertake any work to the motel reception area as depicted in drawing 102/3”, he had no clear recollection of the extent to which work in the motel reception area had been completed when he started work on site. He did, however, recall seeing aluminium framed glass doors or windows installed along the side of the driveway where the reception area was located (Red 37 - 38).

Mr Buckley first inspected the site on 4 July 1973. He had no recollection of the state of the motel reception area at that time. The primary judge noted that a newspaper article on 13 November 1973 in The Daily News showed the motel units still under construction (Red 38).

Howard Hancock gave evidence that, as far as he could recall, the work on the reception area had been done before the construction of the motel units started (Red 38).However, the primary judge concluded (Red 38):
It is more likely than not that the development was carried out in three, not two, stages and that the stage which included the motel reception area was completed by neither Mr Hurst nor Mr Lindsay. Howard Hancock’s recollection was that only Hurst and Lindsay were involved. But his limited ‘hands on’ involvement and fading memory means that his evidence cannot take the matter any further.
In the section of his reasons dealing with the cross-claims, the primary judge held that he was satisfied to the relevant standard that work on the motel reception area occurred after Mr Hurst completed work on the café/restaurant section (Red 64).
On one of the Hancock drawings, 102/3, the word “future” (Blue 1/32) had been inserted against each of the areas at the rear of the shops, including the area designated “motel Recpt”. The primary judge concluded (Red 38–39) that:
This notation is consistent with a decision by the time the work was commenced by Mr Hurst to postpone the work on the motel reception, caretaker’s restroom and laundry, all of which were situated behind the shops along the western boundary of what was to be the driveway. The insertion of the word ‘future’ in the Hancock but not Abernethy plans is further evidence that the work on the reception area was commenced after the Hancock plans had been to Council and endorsed by Mr Buckley. However, the insertion of the word ‘future’ could be understood to bear a different connotation. Mr Barry Tozer, a consultant construction engineer … suggests that the word ‘future’ where used on the drawings, ‘appears to indicate the future use [my emphasis] of the room only.’ If the rooms were constructed as part of the first (shopping complex) stage, their use was suspended until the second (motel) stage was completed. On that construction ‘future’ means future use, not future construction.
The primary judge did not explain his preference for the former rather than the latter interpretation of the notation “future”.
The primary judge inferred that an early draft of a Hancock drawing (102/3) copied the Abernethy drawing of the motel reception area. He drew this inference from the fact that provision for an inward opening door was made on the Abernethy drawing. A faint outline of an inward opening door with hinges also appeared on one of the Hancock drawings (102/3). His Honour inferred that that door was later erased and replaced with an “aluminium sliding glass door” as required in an undated set of specifications found in the Hancomatic Development file in the Council’s records (Red 39, exhibit 9).The undated specifications were the subject of much debate on appeal and we shall return to them later in these reasons.

The Judge’s resolution of the plaintiffs’ case against Hancomatic

The primary judge recorded the plaintiffs’ successful case against Hancomatic as being based on its failure, as owner and lessor of the premises, to replace the annealed glass with safety glass, or to warn of the absence of safety glass (Red 33). We have dubbed this the “safety audit breach”.
The plaintiffs sought to establish that Hancomatic was on notice that the glass used posed a risk by relying on two accidents involving the glass in the Wharf Street premises.
The first accident occurred in 1980 when an eight year old boy who saw his mother in the amusement machine area of the milk bar, mistakenly thinking the door from the street was open, ran towards her and crashed through the closed glass door. He was badly cut on both legs. The incident was not disputed at trial but there was a live issue as to when and how, or indeed if, it was communicated to Howard Hancock. Mr Hancock said the first time he heard about the accident was in 1999 when Anthony Hancock told him about it following Ryan’s accident. Anthony said he first heard of the incident about two months after Ryan died.
Howard Hancock’s divorced wife, Betty, however said that Mr Hancock had told her about the incident during a telephone conversation in the late ‘70’s or early ‘80’s when they were discussing the needs of their children. Mr Hancock denied having spoken to his wife about the incident and said he only spoke to her about family matters and did not mention his business affairs to her. He would have regarded an incident involving damage to one of the shops as in the latter category. Mrs Hancock agreed her former husband did not normally talk to her about his business affairs, but said she regarded the accident as distinct from an ordinary business matter (Red 40).

The second accident occurred in 1984 or 1985. At that time a business called “Alternate Arrangements”, operated by Mrs Margaret Church and her husband, was in the area where the milk bar had been. On one day when it had been raining heavily and the rain had been driving in through the entrance to the shop, Mrs Church closed the sliding glass door and placed a small sign stating, “Please slide” on it. Notwithstanding the notice the local postman walked “straight through the door” while it was closed. Mr and Mrs Church paid for the repair by making a claim on their own insurance. They had never met anyone who claimed to be the owner of the complex. The extent of the injuries, if any, suffered by the postman do not appear from the judgment. It also does not appear to have been asserted that the incident ever came to Mr Hancock’s notice (Red 41-2).

In 1997, Mr Hancock decided not to renew the motel lease with the then tenants but, rather, to offer the lease to his son and daughter-in-law, Anthony and Letitia. They decided to use the then defunct company, A R Hancock & Co Pty Ltd, as the lessee. Anthony Hancock had been a director of that company since 1981 and Letitia was made a co-director and shareholder. It was agreed that the motel and restaurant required substantial renovations. Anthony and Letitia were employed by Hancomatic to oversee those renovations for which each was paid a salary of $325 net per week. The renovations cost $150,000. Mr Hancock made decisions as to what should be done during the renovations based on suggestions from either Anthony or Letitia (Red 42).

A R Hancock & Co Pty Ltd took possession of the premises on 18 July 1997. No written lease was signed because it was agreed that an oral lease was sufficient as only family members were involved through the relevant companies. Anthony and Letitia became managers of the motel and eatery business and drew salaries of $375 each from A R Hancock & Co Pty Ltd, which also paid $715 a week rent to Hancomatic (Red 43).

A third incident upon which the Hancocks relied occurred in 1998 when vandals kicked in a panel of glass in front of the western-most shop. The incident was reported to Mr Hancock, who instructed that the glass should be replaced (Red 43).
The Hancocks relied on an expert report prepared by Dr Justin Ludcke, who gave evidence that the glass in the shop front which had been vandalised bore a safety glass demarcation. Dr Ludcke assumed the safety glass was installed after the incidents in 1980 and 1984 or 1985. The primary judge concluded it was equally likely to have been installed following the 1998 vandalism incident (Red 49).
Dr Ludcke also gave evidence that an appropriate risk management policy and/or a safety audit of the building would have revealed the presence of annealed glass in the shop front and entrance to the reception area. The primary judge noted that while annealed glass and safety glass are not readily distinguishable from ordinary observation even by a qualified expert, safety glass bears a demarcation or stamp, the absence of which was sufficient to alert a person undertaking such an inspection to the likelihood that the glass is not safety glass.

The primary judge concluded that an inspection by an appropriately qualified person would have isolated the glass panels which did not bear a safety glass demarcation and that a deglazing analysis in order to ascertain whether there was any annealed glass still in place could then have been undertaken. He was satisfied that, provided the plaintiffs could establish a duty on Hancomatic to have such an inspection carried out, it would have been an effective means of identifying the nature of the glass in the panels for the purpose of determining which required replacement (Red 50).

The primary judge accepted that cl 44C and AS1288-1973 applied to “installation” and were directed at those engaged in the approval, supervision and erection of buildings involving the installation of glass doors. They did not require the removal of annealed glass and its replacement with safety glass in doors which were installed at a time when safety glass was not a statutory requirement. His Honour noted in passing that it was for this reason that the relevance of cl 44C and AS 1288-1973 to Hancomatic’s case against the Council depended on whether the door to the reception area was installed after they came into effect (Red 52)

The primary judge held that the relevance of Ordinance 71, cl 44C to Hancomatic’s liability to the Hancocks, however, was not to establish that Hancomatic built the motel premises in contravention of that ordinance, but to show that safety requirements in commercial premises of which the Ordinance and Australian Standards were part, had become a matter of actual or constructive knowledge on Hancomatic’s part (Red 53). We infer that his Honour’s reference to the “motel premises” was intended to include a reference to the motel reception area. It is this finding which the plaintiffs contend overlooked the plea in their Further Amended Statement of Claim (at Red 5) that Hancomatic failed to complete the motel reception area with glass which complied with cl 44C.

The primary judge was critical of Mr Hancock for failing to do any more in 1997 when the premises were renovated than rely on the adult Hancocks to identify what work needed to be done. He noted that Mr Hancock agreed to shower screens in the motel being replaced because the wire between the glass had started to rust. He observed that at that stage it would have been reasonable for Hancomatic, through Mr Hancock, to have done more than pay attention only to defects which were apparent on inspection. He concluded that Mr Hancock appeared to have given no attention at any time to matters of public safety notwithstanding the use of the premises as a motel and restaurant, both designed to attract members of the public of all ages (Red 55).

The primary judge held that a “cursory inquiry” would have put Mr Hancock on notice of the need to use safety glass in commercial buildings. Although His Honour accepted Mr Hancock’s evidence that he remained ignorant of the types of glass used in building, he concluded that “given the use to which his company’s premises were put, such an attitude bordered on willed ignorance” (Red 56).

The primary judge held that when Hancomatic undertook substantial renovations in 1997, it was under a duty at that stage, if not before, to make appropriate inquiries and conduct a safety audit of the kind described by Dr Ludcke. Had this been undertaken, it would have disclosed the extent to which annealed glass still remained on parts of the premises where the installation of safety glass was required. A proper regard for public safety would have required Hancomatic, in response to such a discovery, to replace annealed glass with safety glass, particularly in areas where the glass was in the path of or adjacent to entrances and exits to and from parts of the premises used by members of the public, including prospective customers and clients of the lessees of Hancomatic (Red 56).
His Honour noted that a feature of the facts was the “cumulative impact of events over [the] twenty-five year period which began with the construction of the ‘Town Motel’ which “coincided with and most likely than not post-dated the introduction of cl 44C on 1 July 1972” (Red 57C). The generality of this statement is such that it is not possible to regard it as a finding that the construction of the motel reception area post-dated the introduction of cl 44C.

The primary judge held that Hancomatic did not give consideration from the time of the motel’s construction to matters of public safety, notwithstanding the continuing use of premises as a motel and restaurant. He found that, “most importantly” in 1997 when extensive renovations and repairs were undertaken, Hancomatic failed to include any safety audit for the purpose of addressing structural features which “had long been recognised as a prospective danger to the public”. He held that Hancomatic’s failure to conduct such an audit was a breach of its duty of care which resulted in the death of Ryan Hancock (Red 57).
The primary judge also concluded that the 1998 vandalism incident should have been sufficient to raise in Hancomatic’s mind a concern about whether glass on parts of the premises was sufficiently resilient to impact to avoid exposing other persons to the risk of serious injury and that an “appropriate response” would have been sufficient to avert the accident. On the assumption, which he did not explore, that Hancomatic’s duty as landlord persisted during the lease to AR Hancock & Co Pty Ltd, he concluded that the failure to respond to the 1998 incident was an additional ground of liability (Red 57).
The primary judge concluded that there was no evidence that the cost of replacing the annealed glass in 1997 was disproportionate to the risk of serious personal injury or death from such glass (Red 61M). He also held that the necessary causal connection between the breach of duty on the defendant’s part and the injury was established in that the installation of any form of safety glass would have averted injury of the kind suffered by Ryan Hancock which caused his death (Red 62B-D).

The Judge’s resolution of Hancomatic’s cross-claim against the Council

As we have explained, as the primary judge understood the plaintiffs’ case, the time when the motel reception area was built was not determinative of Hancomatic’s liability. However, his Honour recognised that this issue was critical to Hancomatic’s case against the Council which, in one of its branches, turned on making good the proposition that the Council was in breach of a duty to advise and/or require Hancomatic to comply with Ord 71, cl 44C or AS 1288-1973 at the time the motel reception area was constructed.
As the primary judge recorded, Hancomatic perceived it was necessary to argue that the relevant Council approval, including approval of the motel reception area, had been completed in August 1971 to protect it from any perceived liability to the plaintiffs arising out of a breach of cl 44C at the time of construction. It was only as an alternative that Hancomatic assumed for the purpose of the cross claim that the relevant approval had not been forthcoming until after 1 July 1972 (Red 63R-V).
The case the primary judge concluded was made out against the Council appears not to have turned on whether the motel reception area was approved after July 1972 when cl 44C became operative. His Honour concluded that the motel reception area was approved at the time the shopping complex was approved, i.e. in August 1971 (Red 67D).
However, his Honour appears to have concluded that despite formal approval in August 1971 of the shopping complex, the Council had a continuing role in relation to parts of the premises which had been approved but not constructed prior to 1 July 1972. In this respect he attached great weight to his conclusion that work on the motel reception area was not undertaken by either Mr Hurst or Mr Lindsay, but occurred after Mr Hurst finished work on the café/restaurant section (Red 64O).
The primary judge found that:
To the extent that a subsequent approval can be inferred from the endorsement of the Hancock drawings by Mr Buckley in 1972, any such approval must be restricted to the motel section and could not extend to the motel reception area whose redevelopment had been approved in 1971. (emphasis added)
However, he also held:
When the Council approved the Hancock drawings and implicitly the development of the motel section … was… sometime after 1 July 1972.
In such circumstances there could be no doubt that cl 44C had to be complied with in relation to the motel units (Red 67A, W).
The primary judge noted that once cl 44C came into effect on 1 July 1972, the Council was under a duty by virtue of ss 310 and 314 of the Local Government Act 1919 to require that glass doors in commercial premises contained safety glass (Red 66). There was no evidence, however, that the Council had imposed a condition that the motel section comply with cl 44C (Red 68T). Having recorded that there was no evidence that the Council imposed a condition when it approved the Hancock plans that Hancomatic comply with cl 44C, the primary judge said:
The Council was under a duty to notify [Hancomatic] at the time of ‘approval’ of the motel section of the requirements of Clause 44C. Mr Buckley admitted that there were occasions after 1 July 1972 when the Council failed to provide applicants with such notice. Such omissions do not excuse the Council from failing to carry out its obligations under the Local Government Act where the circumstances required. A notice to the effect that, in any construction associated with the original application whether part of the shopping complex or the motel section, safety glass was to be installed as required by Clause 44C was the least that was required of Council in the circumstances. Had such notice been given the Council may have been relieved of any responsibility for the absence of safety glass where it was required.
…
I find that the failure of the Council after Clause 44C came into force but before any work had commenced on the motel reception area, to bring Clause 44C to [Hancomatic’s] notice was a breach of duty on the part of the Council and that it is liable for the consequences of that breach, which in this case is the full extent of [Hancomatic’s] liability to the plaintiffs. [Hancomatic] was entitled to expect of the Council notification of the newly enacted requirements with regard to safety glass which would have provided the defendant with the means of avoiding liability for the death of Ryan Hancock. (emphasis added) (Red 68-69)
It is implicit in the passage we have emphasised that the primary judge found the motel reception area was constructed after 1 July 1972. This is the only passage in the judgment where his Honour reached a specific conclusion as to that temporal issue.
The primary judge also held that the Council’s failure to comply with the requirements of the Local Government Act in either advising of or requiring compliance with cl 44C was a breach of a duty of care to those such as the plaintiffs who might suffer injury as a consequence of the retention of annealed glass in premises in which safety glass should have been installed at the time the building work was carried out with the Council’s approval (Red 69S-W).
He concluded that Hancomatic was therefore entitled to succeed on its cross-claim against the Council to the extent of complete indemnity on the grounds of either breach of duty to Hancomatic, or on the grounds that the Council was a joint tortfeasor which would, if sued, have been liable (Red 69).
It is convenient at this stage to summarise the primary judge’s critical findings:
(a)          The Council approved the shopping complex on 26 August 1971 (Red 64);
(b)          The Council approved the development of the motel section after 1 July 1972 (Red 67X);
(c)          The approval of the motel section did not extend to the motel reception area “whose redevelopment had been approved in 1971” (Red 67D);
(d)          Clause 44C had to be complied with in relation to the motel units (Red 67);
(e)          The development was carried out in three, not two, stages and the stage which included the motel reception area was completed by neither Mr Hurst nor Mr Lindsay (Red 38T). This conclusion turned in part on Mr Hancock having had limited “hands on” involvement. There was nothing in the evidence or the findings to suggest that Hancomatic had acted otherwise than through a building contractor.
(f)           Work commenced on the motel reception area after cl 44C came into force (implicit in his Honour’s statement at Red 69).
On appeal, the Council argued that the primary judge erred in concluding that the work commenced on the motel reception area after 1 July 1972. The plaintiffs supported that conclusion. Hancomatic adhered to the dual stance it had taken at trial, seeking to maintain that finding for the purposes of its cross-claim against the Council, but being content, were the Council to persuade the Court to the contrary, to obtain the benefit of that decision to resist the plaintiffs’ Notices of Contention.
The planning process and the building works
In order to appreciate the factual matrix from which the primary judge’s findings emerge, it is necessary to pay close attention to the documentation brought into existence at the time of the redevelopment.
We will not repeat, save where necessary, the chronological framework which emerged from the documentary analysis the primary judge undertook.
On 15 March 1971, the Shire Clerk advised Mr Hancock that approval in principle had been granted for the proposal subject to compliance with building regulations as required by the Council’s health and building office. There are various hand-written notes on what appears to be the Council’s file copy of that letter including one stating “plan being prepared for lodgement”.
Mr Abernethy submitted the plans to the Council (marked to the attention of Gary Smith) under cover of an undated handwritten note with the request that Mr Smith “have a look at them and let me know what you think” (Blue 1/9).
The plans which accompanied Mr Abernethy’s note were dated April 1971 and comprised at least two sheets, one (WD 1) being the Foundation and Drainage Plan, and the other (WD 2) being the Ground Floor Plan (Blue 1/56-57).
The Ground Floor Plan showed to the east of the property, and fronting onto Wharf Street, a driveway for incoming traffic only. Immediately to the west and running backwards from Wharf Street was an area described as “Rentable Area”, behind which was the “Motel Office”. Immediately behind the Motel Office was an area described as “Caretaker’s Rest Room”. Written over the two areas for the motel office and the caretaker’s rest room were the words “Al[uminium] framed FG [fixed glass] panel and swing door”.
To the west of the Rentable Area was an area marked “Restaurant”. To its north, across a corridor was the “Kitchen”. There was a “Store” behind the Kitchen, and a “Refuse Area” behind the store. To the west of the Restaurant was an area marked “Snack Bar” which ran almost the length of the front section of the property and was marked, at the north end, “General Area”. A note in the General Area stated “Existing brick walls shown as unhatched”.
For present purposes, it is relevant to note that the plans depicted hatched walls (i.e. walls to be constructed) as follows:
(a)extending south from the existing wall which divided the General Area from the Store; this wall showed an opening indicating access between the Kitchen and the Snack Bar/General Areas;
(b)the plans indicated a corridor was to be created between the southern wall of the kitchen and the northern wall of the restaurant; on the kitchen side it was to extend, save for a break indicating a door into the kitchen, to the western (existing) wall of the Motel Office/Caretaker’s Rest Rooms and to the entrance to the Snack Bar on the west; on the restaurant side of the corridor was a hatched wall, starting at the snack bar then extending east, but broken by two spaces where it abutted the restaurant (indicating two doors to the restaurant) then to the outer (eastern) boundary of the Motel Office;
(c) at the western end of the corridor, a new wall was shown dividing the snack bar from the restaurant running south to the front of the property on Wharf Street;
(d)on the eastern side of the property, running along the driveway, a short new wall was shown running north-south along the rentable area abutting the wall running along the southern end of the Motel Office; and
(e)a new wall was shown dividing the Motel Office from the Caretaker’s Rest Rooms, with provision for access between the two areas at its eastern end.
The wall between the “rentable area” and the “motel office” was unbroken. The rear of the motel office was separated from the kitchen by a wall, but otherwise there was uninterrupted access as shown on the Plans from the swing door at the entrance of the motel reception area through to the snack bar/general area.
To the rear of the general area was a section marked “Toilets”. To the rear of the toilets were a number of areas marked car spaces 1–5. At the intersection of the general area and the toilets was an inverted equilateral triangle pointing east over and around which was written “Datum point for start of new motel section.” The motel reception area was to the south of the datum point.
To the north of the datum point, and running east-west along the rear wall of the toilets and the first car space was a red line with an arrow pointing to the north of the property against which were the handwritten words “motel section not approved PD”. As we have earlier noted, these were the initials of a Council officer.
The Ground Floor Plan bore various stamps each of which appeared to be conditions relating to specific aspects of the building work, but none of which expressly stated that the works had been approved. Mr Buckley gave evidence that the Council did not use a formal “approved” stamp at the time. As we have already said, it was uncontroversial that the Council approved the shopping complex only on 26 August 1971.
By an undated letter on Hancomatic’s letterhead, Mr Hancock wrote to the Council advising:
Since the granting of the above approval for two shops and a restaurant in Wharf Street, Murwillumbah, there have been a few changes in the plans – namely the shifting of the toilets to go under the moved proposed motel extension, plans for which we shall be submitting later this year for your approval.
If the enclosed amended drawings meet with your approval could you please notify us and we will call for the Builder’s Copy and Drainage Plan as soon as possible. (Blue 1/16)
This letter appears to relate to another copy of the Abernethy plans, to all intents and purposes identical to the Ground Floor Plan we have described. However, the red line which previously ran west-east along the rear wall of the toilets and indicated the two stages of the works had been moved to the south. It now ran along the north wall of the general area and then in a virtually straight line east to cross the incoming driveway. It then ran along the southern boundary of the property, ending opposite the wall depicted behind the kitchen and the caretaker’s rest rooms. (Blue 1/20) At the top of the line appeared another triangle, pointing south and the notations:
“STAGE 1 FORWARD OF ARROW
STAGE 2 REAR OF ARROW (SEPARATE CONTRACT)”
Below that notation, and intersected by the east-west line, was another equilateral triangle pointing east, described as “datum point for start of new motel section”. The motel reception area was within the area indicated as Stage 1.
On 12 October 1971 the Shire Clerk wrote to Mr Abernethy acknowledging the receipt of amended plans from him for the proposed motel section of the motel and shopping complex on behalf of Mr Hancock. The letter went on to advise that correspondence had been received from a legal representative of Hancomatic withdrawing any authority it might be deemed to have given Mr Abernethy to submit plans on its behalf or to seek Council approval for the construction of a motel on Hancomatic’s land. The letter advised that in view of the foregoing the plans Mr Abernethy had lodged were to be held pending his further instructions (Blue 2/151).The evidence does not record why Mr Abernethy fell out of favour. He was not called to give evidence. No party commented about his absence.
We note at this stage, that Mr Hurst said that he undertook building work in the front section of the premises between December 1971 and no later than February 1972. We will return to the detail of his evidence in due course. It is convenient at this stage, however, to deal with the second set of plans which came into existence in 1972. The difficulty about determining the date the motel reception area work was done has arisen partly from the fact that the 1972 plans include the work approved by the Council in 1971 and described as in Stage 1 on the second Abernethy working drawing (Blue 1/20).
Robert Hancock was Howard Hancock’s brother. He was a draughtsman (Black 274).In March 1972 he prepared two drawings for “Proposed Two Shops and Restraunt [sic, as in original] and 10 motel units at Wharf Street Murwillumbah”. They were described as “Preliminary Only”. The first plan numbered 102/1 (Blue 1/30) was described as “Ground Floor Plan and Parking Layout”. It was clearly copied from the Abernethy Ground Floor Plan. It had an identical layout for that part described as Stage One on the second Abernethy Ground Floor Plan, save that it did not include any dimension details. It also bore the same descriptions of the various areas depicted, save that it did not caption the area shown on the Abernethy plan as “Toilets” and it contained different detail for the car spaces.

The second plan Robert Hancock prepared in March 1972 was described as “Existing Roof and 10 Motel Units” and was numbered 102/2 (Blue 1/31). It appeared to show the roof over the existing structure and 10 units, access to which was gained via a staircase at each end of the structure.
In May 1972, Robert Hancock prepared working drawings. Two 102/3 and 102/4 (Blue 1/32-33) related to “Proposed Two Shops and Restraunt” [sic, as in original], while two others, 102/6 and 102/7, referred to “Proposed 10 Motel Units” (Blue 1/34-35).
The layouts of the shopping complex area in Plan 102/3 appears identical to that in Abernethy Plan WD2 save for the following:
(a)In Plan 102/3 all entrances had been numbered from 1–17. The door to the motel office (now described as “Future Motel Recpt.”) was numbered 14. This numbering assumes significance in the arguments advanced by Hancomatic and the plaintiffs in relation to the document described as undated specifications we will shortly address;
(b)in the restaurant and the rentable area (now described as “Shop 1”) the doors fronting onto Wharf Street (marked 10 and 11) and those fronting onto the motel driveway (marked 12 and 13) are now described as “aluminium [or Al.] sliding doors”;
(c)the word “future” had been added as a descriptor to the “motel recpt”, to the caretaker’s rest rooms and to the laundry/store;
(d) detail of fittings had been included in the kitchen;
(e)the “General Area” had been re-captioned “Amusement Area”; two dotted lines running east-west appeared between it and the Snack Bar to which an arrow pointed with the description “existing wall to be removed” (we note at this stage that Mr Hurst says that he demolished this wall (Black 214 O-T); the wall was not depicted on the Abernethy plans);
(f)whereas in the Abernethy plans the laundry had opened both onto the driveway and to the rear opposite an area described as “refuse area”, in the Hancock drawing it appeared to have been reduced in size and to back only onto the storage area;
(g)the most significant change was that whereas the toilets had previously abutted the general area, they had now been relocated into what appeared to be a separate building separated by a passageway, but substantially behind the refuse area; and
(h)at the northern end of the motel driveway were two dotted lines marked “existing wall to be removed”.
Hancock plan 102/3 also bore the caption “existing walls shown unhatched”. In the floor plan of the shopping area, the walls shown hatched were the same walls which had been shown hatched in Abernethy plan WD2. This assumes particular significance in the Council’s argument about the weight to be attached to Hancock plan 102/3.
The primary judge referred briefly (Red 39) to an undated set of specifications found in the Hancomatic development file in the Council’s records (Ex 9) (Blue 5/12-25). His Honour described that document as requiring an “aluminium sliding glass door” in the motel reception area. He inferred that this was a change effected by an early Hancock drawing.
The document is headed “Minimum specification of 2 shops and a restaurant at 3, 5, 7, & 9, Wharf St., Murwillumbah for Hancomatic Music Co Pty Ltd”. The plaintiffs, and Hancomatic in the sense we have earlier explained, relied upon this document to demonstrate that the motel reception area was constructed after July 1972. The Council argued that the document related to the Stage One works and demonstrated that Mr Hurst constructed the motel reception area as part of those works.
It is unnecessary to quote the document in detail at this stage. We refer only to those portions upon which the parties respectively relied.
First, the document required “4 existing openings in side walls to be bricked-up as best possible to match existing brickwork” (Blue 1/12-27). The Council says that this direction related only to the work undertaken in accordance with the Abernethy plans.
Secondly, a diagram in the section headed “concrete” had written against it “not approved PD”. The Council relies on the proposition that this was a reference to Mr Denton, the Council officer who approved the Abernethy plans in August 1971. It also submits that this diagram related to the floor in the snack bar area which Mr Hurst said he constructed.
Thirdly, the document details the materials to be used at doors numbered 1–17. In particular it states:
Door 14. 7‘0” x 3’6” aluminium sliding glass door with fixed light and glass louvres over.
Hancomatic and the plaintiffs rely upon the fact that this numbering of the doors first appeared on the Hancock plans in May 1972, and the primary judge’s conclusion that the Hancock plans were not approved until after 1 July 1972, to submit that the primary judge was correct in concluding that the motel reception area (and implicitly the door to it) was completed after 1 July 1972.
Mr Howard Hancock was 74 at the time he gave evidence. He had had a stroke in 1990 and accepted that his memory was “not real good” (Black 277). Although he had lived for most of his life in the Tweed Heads area, he had never lived in Murwillumbah. It was apparent from his evidence that he had had little hands on exposure to the actual construction work at Wharf Street. Nevertheless, his evidence was clear that once the Council approved the shopping complex part of the plan, he and Mr Jonas decided to proceed with the part approved in order that Hancomatic’s amusement machines could be placed in the Fun Parlour (Black 246V-X). Mr Hancock said that he included the motel reception in the shopping complex part of the premises (Black 288-289).
Mr Hancock said that Mr Hurst did all the front part that had been passed and Mr Lindsay did the motel (Black 247K, 257E, 280-281).He could not recall any other builders being engaged to work on the site other than Mr Hurst on the front and Mr Lindsay on the back (Black 247R).
Mr Hancock said all the front part was done at one time (Black 271R). As far as he could recall the work was done on the reception area before the work on the motel units commenced (Black 251N). When it was put to him that he could not say that Mr Hurst did the work constructing the reception area for the motel he said:
Well if he didn’t, I certainly do not know who did well. (Black 281C)
He said that, as far as he could remember, there was no wall closing off the rear of the motel reception area as indicated by Mr Hurst (Black 253N).
Mr Hancock accepted, when cross-examined by Mr Wheelahan on behalf on the plaintiffs, that the development at Wharf Street proceeded in two stages, the first being the shopping complex and the second the construction of the motel units (Black 272-273).Mr Hancock said that the Abernethy plans were approved for the shops, but knocked back for the motel and that his brother had submitted the plans for the motel (Black 285W). He said that the only aspect of the plans his brother drew up which related to work that needed to be done to get the motel up and running in addition to the units, could have been the toilets “out the back” and that he and Mr Jonas might have changed the laundry a bit (Black 275T-276E).
We turn then to the evidence about the building works.
Mr Hurst (who was called by the plaintiffs) said he worked at the premises between December 1971 and no later than February 1972 (Black 212).He said he was engaged by Mr Jonas to refurbish the restaurant, a fun parlour and take-away place and a kitchen located on the “left side [of Wharf Street] looking from the front” (Black 205). He said he was not given any plans. He said he poured a slab in the Golden Spot (snack bar) area and that a Mr Edwards (a Council officer) inspected the steel before the slab was poured (Black 217). He said his work did not extend to any other area of the building than the Golden Spot, and “definitely not” to any work in the area depicted on Hancock drawing 102/3 as “Future Motel Recpt” (Black 206P, 208J).
Although Mr Hurst said his work did not continue beyond February 1972, he was shown (without objection) in examination in chief Hancock drawing 102/3. He said that he put in a wall, apparently at the northern end of the restaurant, but said there was no wall as depicted on Hancock plan 102/3 between the restaurant and the kitchen (Black 207V). The wall he put in gave direct access to the restaurant (Black 208F). He also said that there was a wall running north-south at the rear of the area captioned “Future Motel Recpt”. In other words, according to Mr Hurst, the wall which divided the restaurant and the rentable area commencing at Wharf Street, continued uninterrupted to at least the northern wall of the caretaker’s rest rooms (Black 208).
In cross-examination, Mr Deakin (who appeared for Hancomatic) showed Mr Hurst Abernethy plan WD2. His attention was drawn to the opening at the west boundary of the Motel Office. He said that his recollection was that the wall went “right through”. He was “as near as possible” certain about that (Black 214).
Mr Hurst said he demolished a wall between the kitchen and the amusement area and replaced it with another wall (Black 214). He said he also did work on the awning to stabilise it and sheet it underneath (Black 215).
Mr Deakin asked him whether he could be mistaken in relation to performing work outside the area of the snack bar and restaurant, but he said “definitely not” (Black 215E).
Mr Lindsay gave evidence in Hancomatic’s case. He had entered into Articles of Agreement with Hancomatic on 7 June 1973 to complete 10 units in accordance with the details shown on plans numbered 102/6, 102/7, 102/8 and specifications approved by the Council. Attached to the Agreement was a document described as “minimum specifications of 10 motel units” (Blue 2/159ff).According to Mr Lindsay, the minimum specification was attached to the Agreement when it was signed in 1973.
Mr Lindsay was shown Hancock plan 102/3 which, it will be recalled, showed at the northern end of the motel driveway two dotted lines marked “existing wall to be removed”. Mr Lindsay said that when he went to the premises to carry out an inspection in late 1972 for the purposes of giving a quote, there was no wall as shown on the plan – the driveway was open right through (Black 290Y – Black 293 O). He also said that the opening depicted on the plan in the area described as “future motel reception” was present and that there was glass there, but he could not recall what sort of door had been used (Black 291-292). He said he did not perform any work in the area marked “future motel reception” nor in relation to the driveway (Black 292).
Mr Buckley gave evidence in the Council’s case. He was asked to comment on the apparent absence of documents relevant to the 1972 period in the Council’s possession to which he responded:
It’s obvious from previous evidence that there was work constructed in 1971, and then there was further work constructed in 1973, and the files deal with that period. My expectation would be that there was not activity, in relation to the matter, in the intervening time other than the amended plans that were submitted and are part of the file. (Black 551T)
He said that the May 1972 plans were found in the file concerning the June 1971 building application because they were dealt with as part of that application. He said he had approved the 1972 plans as part of the 1971 application (Black 552).
When the motel reception area was constructed
The plaintiffs bore the onus of proving that the annealed glass was installed after 1 July 1972 insofar as they sought to establish negligence based upon non-compliance with cl 44C. The same goes for any liability of the Council on the Cross Claim, having regard to the way that the case was fought and decided at trial.
The effect of the primary judge’s analysis of the evidence concerning the construction of the motel reception area can be summarised as follows.
First, the primary judge did not make an express finding about when the motel reception area was constructed. It was only in the course of dealing with Hancomatic’s cross-claim against the Council that his Honour said:
I find that the failure of the Council after Clause 44C came into force but before any work had commenced on the motel reception area, to bring Clause 44C to [Hancomatic’s] notice was a breach of duty on the part of the Council and that it is liable for the consequences of that breach, which in this case is the full extent of [Hancomatic’s] liability to the plaintiffs. [Hancomatic] was entitled to expect of the Council notification of the newly enacted requirements with regard to safety glass which would have provided the defendant with the means of avoiding liability for the death of Ryan Hancock. (emphasis added) (Red 69)
Secondly, this finding must be viewed against his Honour’s earlier observations that there was almost no evidence regarding the renovation of the motel reception area where the accident happened, and no reliable evidence of when and by whom that aspect of the work was undertaken.
The foundation for his Honour’s finding appears to have been his acceptance of Mr Hurst’s denial that he constructed the motel reception area (Red 36) and his acceptance of the proposition that where “future” appeared on Hancock drawing 102/3, it meant a decision to postpone the work on the reception area. His Honour appears to have relied on these matters to infer that the development was carried out in three, not two, stages and that the stage which included the motel reception area was completed by neither Mr Hurst nor Mr Lindsay. His Honour also inferred that the work on the motel reception area occurred after Mr Hurst completed his work. Mr Hurst completed his work no later than the end of February 1972.
The Council submitted that the primary judge’s finding that there was no reliable evidence as to when the motel reception area work was done should have resulted in Hancomatic’s cross-claim against it failing. It accepted that in recording this decision his Honour was principally influenced by what he regarded as the “difficulty” of rejecting Mr Hurst’s denial that he had done any work on the motel reception area. It was possible, as Mr Hurst said, that the internal entrance to the motel reception area was sealed off from the restaurant area where Mr Hurst accepted he had undertaken work.
The Council submitted, however, that Mr Hurst’s evidence to this effect, and the primary judge’s derivative use of it, was inconsistent with the Abernethy and Hancock plans. The Council also submitted that the primary judge should not have accepted Mr Hurst’s evidence that the motel reception area was “sealed off” in the light of his rejection of Mr Hurst’s evidence that he had not been given any plans of the work he was required to do and that the “corridor” leading from the motel reception area which was shown on all the plans did not exist (see Red 36M-P).
In such circumstances, the Council submitted that there was no difficulty in rejecting Mr Hurst’s “categorical denial” of working on the motel reception area. His “denial” on this topic was not relevantly any more “categorical” than his other evidence which the primary judge did reject. The Council submitted that Mr Hurst’s denial was not reliable and provided no basis for any finding as to when the work in the motel reception area was undertaken.
The Council also submitted that there was no evidentiary basis for the primary judge’s finding that it was “more likely than not” that the redevelopment was carried out in three stages and that the work on the motel reception area was undertaken by someone Hancomatic did not identify.
The Council submitted that the primary judge’s finding in this respect appeared to have been principally influenced by the fact that the May 1972 Hancock drawings included the “shop” and motel reception area as well as an inference that an undated specification was a detailed door schedule. The Council argued that a finding with those bases was flawed by its failure to take proper account of the facts that:
(i)the Hancock May 1972 drawings included work that Mr Hurst said he had done (for example on the kitchen, the amusement area and the front awning) and could not, therefore, be regarded as indicating the current state of the building work in the “shop” area as at May 1972;
(ii)the Hancock drawings did not include any “demolition” of the wall Mr Hurst claimed existed between the reception area and the kitchen;
(iii)the “shop” and “motel” work were indicated on the Abernethy plans as intended to be done in two stages;
(iv)the fact that the “undated” specification related to the “shop” and restaurant, that is to the proposed Stage 1 of the work, and included work Mr Hurst claimed to have done (as to which see further below); and
(v)the fact, (which the Council acknowledged appeared to have escaped attention at the trial) that the “undated specification” was noted by Mr Peter Denton, the Council building inspector who approved the building application in 1971, and endorsed the approved plans for the “shop” complex.
The Council expanded on the fourth sub-paragraph of the above submissions in its submissions in reply to the plaintiffs’ submissions. It identified work Mr Hurst said he had undertaken which was referred to in the undated specifications as including:
(a)work in the “Golden Spot”/snack bar area (see page 2 of the undated specifications);
(b) work on the awning (see page 5 of the undated specifications);
(c)work refurbishing the restaurant (see pages 7 and 8 of the undated specifications);
(d)work in the kitchen, including the demolition and replacement of a wall (see pages 5, 6 and 8 of the undated specifications);
(e)pouring a concrete floor in the “Golden Spot”/snack bar area (see page 2 of the undated specifications); and
(f)putting in a new ceiling, did painting “and various things – virtually refurbished” (see pages 5 and 7 of the undated specifications) (Orange 141).
The Council submitted that when the evidence was properly considered there was no evidentiary basis for the finding that there were three building contracts and strong evidence that the undated specifications were prepared for the purpose of the first stage of the building work and long before the May 1972 Hancock plans. It also contended that there was no evidence that the undated specifications were submitted in connection with the Hancock plans.
Both Hancomatic and the plaintiffs support the primary judge’s finding that the work in the motel reception area occurred after 1 July 1972. The principal argument upon which they relied to support this finding was the fact that in Hancock drawing 102/3 all entrances had been numbered from 1–17, numbering which unarguably corresponded with the numbers assigned to the doors in the undated specification. In particular, they relied upon the fact that in the original Abernethy plan, WD2, the door to the motel reception area was to be a swing door, whereas in the undated specifications, door 14 (the door to the reception area) was described as an aluminium sliding glass door. Hancock drawing 102/3 did not bear a caption identifying the nature of the door or materials to be used at the entrance to the motel reception area. However, there appeared to be a faint indication of a swing door at that point.
Mr Taylor submitted that this Court was not constrained in reviewing the primary judge’s reasoning by Abalos v Australian Postal Commission (1990) 171 CLR 167. Rather, he contended, his Honour’s reasoning was probabilistic and not based on credibility findings. To the extent that his Honour did not accept the entirety of Mr Hurst’s evidence, but, rather, rejected parts, Mr Taylor submitted that his Honour must have reached that conclusion by a process of inference, which was equally available to this Court.

It was also submitted that Phegan DCJ’s statement overstated the scope and stringency of the duty and that there is no duty with a higher content falling upon the occupier (let alone owner) of commercial premises. As we indicate later in this judgment, we accept these submissions.
His Honour continued (Red 47-8):
In none of those cases was it necessary to address the question whether the obligation of regular and continuing inspection would extend to leased premises. However, any uncertainty in that regard is of little consequence in this case. There is no evidence to suggest that an inspection close to the incident in which Ryan Hancock was killed would have revealed anything different from an inspection conducted immediately before the motel premises were leased to A R Hancock & Co in July 1997. Provided that the duty to inspect existed when the defendant was in occupation before handing over possession to A R Hancock & Co and such inspection would have exposed the danger, the plaintiffs would have a potentially successful claim.
A further point of distinction between the above line of cases and this case is that the danger in those cases was readily apparent on inspection by an occupier without particular expertise. Drotem was a case about a slippery walkway. In Johnson, there was visible evidence of dry rot in a staircase and in Brady the plaintiff slipped on jelly on the floor of a public area in a shopping complex.
Before the defendant could be held liable in this case, the duty would have to extend to the conduct of inspections by a person qualified to distinguish between annealed and safety glass unless the defendant had actual notice of the danger. Such an extended duty assumes that a person appropriately qualified would be able to make that distinction and therefore put the defendant on notice of the need to replace the annealed glass.
Hancomatic and the Council are critical of this formulation of an “extended duty”. They submit, and we agree, that a duty of care should generally be expressed in the form of a duty to exercise reasonable care. What is reasonable depends on a myriad of circumstances. The commercial nature of premises is clearly relevant to questions of breach, if for no other reason than that commercial premises like these would have members of the public coming and going in the particular area.
Speaking of “dangerous defects” in residential premises, Gummow and Hayne JJ said in Jones (at 220[186], 221[193], footnotes omitted):
… the steps a landlord was required to undertake were only those that would be taken in the course of “ordinary reasonable human conduct”. The matter is not an exercise of hindsight. The identification of the requisite steps will depend, among other things, upon whether an ordinary person in the landlord’s position would or should have known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps.
…
The content of the landlord’s duty in a case such as the present is not one of strict liability, to ensure an absence of defects or that reasonable care is taken by another in respect of existing defects. It is not a duty to guarantee that the premises are safe as can reasonably be made.
See also New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879.
We would observe that there will undoubtedly be situations where a duty to exercise reasonable care to avoid personal injury occurring in commercial premises may be discharged by the manner in which the occupier permits or restricts activities taking place in the particular area, as well as by erecting adequate warning signs.
In the present case there were clearly visible reflective strips over the glass on the offending door (Black 5). We are not stating that this in itself discharged the duty of reasonable care. Our point at this stage is the broader one, that the trial judge’s framing of the duty misstated the duty and foreclosed the enquiry that must take place, according to the principles in Wyong Shire Council v Shirt (1979) 146 CLR 40, before any conclusion of breach can properly be made.
Judge Phegan then addressed the matter of “expert inspection”. He noted that, in Jones, the only expert to give evidence was not asked whether he would have recommended replacement of the glass in the door (see Jones at 174). Similarly, in Ahluwalia v Robinson [2003] NSWCA 173 (a case involving a child who slipped and fell thought an annealed shower screen), it was held that the evidence did not justify a finding on the balance of probabilities that even a person with some general expertise in building or architecture would have detected that the glass in the bathroom was not safety glass.
Judge Phegan referred to evidence in the present case from an expert and a glazier showing that an inspection by an appropriately qualified person would have isolated those glass panels which did not bear a safety glass demarcation (Red 49-50). (There is a factual dispute on this matter, but we pass over it.) His Honour nevertheless acknowledged, correctly in our opinion, that it was still necessary for the plaintiffs to establish that Hancomatic had “a duty … to have such an inspection carried out” (Red 50).
His Honour then addressed “prevailing standards”, referring to Ordinance 71 cl 44C and the 1973 Australian Standard AS1288 (Installation of Glass in Buildings). However, each applied explicitly to “installation” and neither required the removal of annealed glass and its replacement with safety glass (Red 52). His Honour acknowledged that. For that reason their relevance as the foundation of a duty on the part of either Hancomatic or the Council depended upon whether the door to the reception area was installed after they were in effect. Nevertheless, the judge did not apply his later finding about the timing of the installation to this duty enquiry (see Red 52). In any event, we have indicated why we do not share his Honour’s view on this factual issue.
Judge Phegan did, however, state that the standard, in particular that contained in Ordinance 71 cl 44C, was relevant to show that “safety requirements in commercial premises of which that ordinance and the Australian Standard are part had, over time, become a matter of actual or constructive knowledge on the part of the defendant” (Red 53).
Then commenced the critical portion of his Honour’s reasons on the question of the safety audit breach (Red 53-57).
His Honour accepted the evidence of Mr Howard Hancock that at no relevant time had he addressed his mind to the kind of glass used on the motel and restaurant premises nor had he understood the difference between annealed and safety glass (Red 53, 56). He also accepted Mr Hancock’s evidence that he was ignorant of the types of glass used in the buildings (Red 56).

Factual issues concerning Mr Hancock senior’s knowledge of specific incidents involving the breaking of glass at the subject premises were then addressed (Red 53-55). The only finding adverse to Hancomatic as regards actual knowledge related to the incident involving the “hoons” who has smashed in a window on one of the shop fronts in 1988 (Red 43, 53-55).
The judge made no reference to the role of the adult plaintiffs or the lease of the motel to their company, A R Hancock & Co Pty Ltd, as relevant to Hancomatic’s duty of care or the question whether that duty was breached.
No evidence was led at trial as to standard practice concerning inspections to detect dangerous glass situations or any practice of upgrading annealed to safety glass in particular circumstances. Indeed, in the passage quoted in the next paragraph, the Judge stated that he was not satisfied that “industry standards” about the use of safety glass “would necessarily have come to the attention of owners of commercial premises” (Red 54-5).
Nevertheless, Judge Phegan proceeded to find that Hancomatic had a duty when it undertook substantial renovations in 1997 “to make appropriate inquiries and conduct a safety audit of the kind described by Dr Ludcke” (Red 56), an expert called by the plaintiffs. The critical passage needs to be set out (Red 54-6):
In the course of preparing for the new arrangement to be put in place in 1997, under which the premises were to be leased to A R Hancock & Co and managed by Letitia and Anthony Hancock, the state of disrepair into which the premises had been allowed to fall was evident. Howard Hancock acknowledged the state of the premises at the time in his evidence-in-chief:
… we knew the place needed a fair bit of restoration, needed painting inside and out, a whole lot of work had to be done, carpets renewed and a lot – lot of renovation [my emphasis]
He was reminded in cross-examination that, in addition to inspecting prospective air conditioning units with his son, he also inspected the premises with particular regard to the state of the shower screen, which he noted were “getting rusty”:
… they had wire in between the glass and the wire over the years had started to rust in the glass.
The shower screens were replaced but it was Howard Hancock’s evidence that he noticed nothing else about the glass in other parts of the premises.
It was at this point that it would certainly have been reasonable to expect more of the defendant, through its principal Howard Hancock, than attention only to defects which were apparent from Mr Hancock’s own inspection. For twenty five years he had chosen to leave almost all of the decision making with regard to the composition and condition of the premises in Wharf Street Murwillumbah to others. At the time of the construction of the motel he had delegated the task to his partner, Jan Jonas, and twenty five years later, when undertaking substantial repair and renovation of the premises, he relied extensively on his son and daughter-in-law to identify what work needed to be done. However incomplete the development of relevant case law in defining with any degree of precision the duty of a landlord of commercial premises, support for the conclusion that the defendant through Howard Hancock failed to exercise sufficient care with regard to the safety of the premises and in particular the type of glass used in doors and other exposed parts of the premises can be found in the general statements of both the High Court and Court of Appeal discussed earlier. Howard Hancock appears to have given no attention at any time to matters of public safety notwithstanding the use of the premises as a motel and restaurant, both designed to attract members of the public of all ages.
As Dr Ludcke observed in his report, the industry standard requiring the use of safety glass had been in place for almost twenty five years at the time the premises were repaired and renovated in anticipation of the A R Hancock & Co lease. I am not satisfied that such industry standards, as long standing as they were, would necessarily have come to the attention of owners of commercial premises. However, in the case of premises used for the purpose of a motel and restaurant as well as other street front shops, some attention to matter of public safety could reasonably be expected of the owner and even the most cursory inquiry of a person in the building trade would have put Mr Hancock on notice of the need to use safety glass in commercial buildings. I noted earlier that I accept the evidence that he remained ignorant of the types of glass used in buildings. As he put it, he “never even thought about glass”. Given the use to which his company’s premises were put, such an attitude bordered on willed ignorance.
Mr Hancock went to some length in the course of his evidence to emphasise the rare occasions on which he visited the premises. Although there was some evidence that he lived on the premises for a short time at one stage, even that had earlier been denied by him. He attempted to explain this inconsistency by suggesting that he had misunderstood the period to which the question put to him earlier was directed. All of the evidence points to the conclusion that Mr Hancock preferred to have as little as possible to do with the premises. But his persistent attempts to distance himself from decisions which had to be made from time to time are not sufficient to protect him from responsibility for his comprehensive failure to give any attention whatsoever to matters of public safety on the premises. The knowledge of the wired shower screens which were replaced, while not constituting actual notice of the type of glass in other parts of the premises, should have been sufficient to prompt a landlord conscious of public safety to ask why such glass (which apparently was safety glass) was used.
When it undertook substantial renovations in 1997, the defendant was under a duty at that stage, if not before, to make appropriate inquiries and conduct a safety audit of the kind described by Dr Ludcke. Had this been undertaken, the evidence is that it would have disclosed the extent to which annealed glass still remained on parts of the premises where installation of safety glass was required. A proper regard for public safety would have required of the defendant, in response to such a discovery, to have replaced annealed glass with safety glass, particularly in areas where the glass was in the path of or adjacent to entrances and exits to and from parts of the premises used by members of the public including prospective customers and clients of the lessees of the defendant.
My conclusions are based on the particular facts of this case, as they must be. A feature of those facts is the cumulative impact of events over a twenty five year period which began with the construction of the Town Motel. Its construction happened to coincide with, and more likely than not post-date, the introduction of a Local Government Ordinance requiring the use of safety glass in doors installed in commercial premises. From the time of the motel’s construction up to Ryan Hancock’s accident no attention was ever given by the defendant, who remained the owner of the premises throughout that time, to matters of public safety notwithstanding the continuing use of the premises as a motel and restaurant. Most importantly in 1997, when extensive renovations and repairs were undertaken, the defendant failed to include any safety audit for the purpose of addressing structural features which had long been recognised as a prospective danger to the public. I therefore find that the failure of the defendant to conduct such an audit was a breach of its duty of care which resulted in the death of Ryan Hancock.
Although not strictly necessary, I will add the observation that the incident of vandalism in 1998, to which Mr Howard Hancock attended directly, should have been sufficient to raise in the mind of the landlord a concern about whether glass on parts of the premises was sufficiently resilient to impact to avoid exposing other persons to the risk of serious injury. An appropriate response, although at a stage when A R Hancock &Co was already in possession as lessee, would still have been sufficient to avert what happened on 3 March 1999. If the duty of the landlord of commercial premises persists during the term of the lease, this constitutes an additional ground for liability.
This passage contains the essential findings adverse to Hancomatic touching the safety audit issue, as regards both duty and breach. The reasoning as to duty and as to breach is sometimes elided.
Hancomatic has submitted (as it did below) that it did not owe the audit duty found to have been breached and that it was not negligent in the circumstances. We would accept both submissions for the reasons that follow.
In our opinion, any duty of care resting upon Hancomatic as owner ought to have been expressed in the form of a duty to exercise reasonable care in the circumstances. To frame it as a duty to “make appropriate inquiries and conduct a safety audit” (Red 56) was to overstate the content of the duty and thereby skew the breach enquiry.
It was accepted that Hancomatic through Mr Hancock snr had no actual knowledge of the risk stemming from using annealed as distinct from safety glass. It was also found that this risk did not constitute a “dangerous defect” in the sense used in some of the judgments in Jones as the springboard for a duty of care with a more specific scope than the standard one. Neither of these conclusions is challenged in this appeal. We agree with them in any event.
We do not, with respect, share his Honour’s view that the wilful vandalism incident of 1998 had any bearing upon the scope or content of the duty of care touching the annealed glass in the door to the reception room or any question of breach.
Nor does the plaintiffs’ case gain assistance from the fact that wired shower screens were replaced as part of the refurbishment works. This was done because they were rusty (Black 261).
When his Honour emphasised (Red 57) that his conclusions were based on the particular facts of this case, he added particular reference to the fact that the construction of the motel “happened to coincide with, and more likely than not post-date, the introduction of a Local Government Ordinance requiring the use of safety glass in doors installed in commercial premises”. We have already explained our rejection of this important temporal finding.
Once it is accepted that the door was installed before July 1972 the duty and breach questions fall to be decided against the background of unchallenged or unchallengeable findings that:
•neither the Ordinance nor the Australian Standard had any application to work installed before their commencement;
•Hancomatic had relied upon a licensed builder who did the relevant work before July 1972 under the authority of approved building plans and the oversight of Council officers;
•Hancomatic, its proprietor, the lessee and its proprietors were all lay people who had no actual knowledge about the relevant dangers of annealed compared to safety glass.
On top of this, there was no evidence pointing to any industry practice or widespread general knowledge touching the relevant danger or capable of generating the duty that was found. This gap in the evidence would also preclude any finding of breach of a more general duty of care in the circumstances of this case. In truth, there were no “prevailing standards” that supported the plaintiffs’ case.

The evidence of the plaintiffs’ expert Dr Ludcke showed that even an expert’s capacity to detect safety glass from annealed glass by inspection on site depended on a stamp referring to safety glass being visible on the particular pane. Absent this, deglazing was required before tests could be conducted to confirm the presence of annealed glass (Red 50). This is scarcely a knock-out point for Hancomatic, but it does reinforce our perception that there was no basis on the evidence for supporting the findings of duty and breach that were made.
In Ahluwalia, Hodgson JA (with whom Sheller JA and Bryson J agreed) said (at [23]):
In my opinion, Jones v Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk.
As Mason P pointed out in Sakoua(at 590[10]):
The foreseeable risk of harm in Ahluwalia depended on a finding by the trial judge that a reasonable person would have commissioned an expert to inspect the premises generally. Apart from that, there was nothing that showed the landlords were aware or should have been aware of any danger associated with a glass shower screen that shattered when the plaintiff slipped and crashed into it. The Court of Appeal overturned the verdict that had been given in favour of the tenant’s visitor.
See also Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 at 477[133].

We recognise, as did the primary judge, that Jones and Ahluwalia involved residential premises. What is reasonable to be done in one situation may not be reasonable in another (Jones at 185[58], 216[174]). But the nature of the premises is not determinative of the scope of the relevant common law duty, which remains one that is focussed upon what is reasonable in the circumstances even for commercial premises or premises open to the public (see eg David Jones Ltd v Bates [2001] NSWCA 233; Wilkinson v Law Courts Ltd [2001] NSWCA 196; North Sydney Council v Plater [2002] NSWCA 225).
It is unnecessary to deal at length with Hancomatic’s challenge to the finding of breach.
Hancomatic occupied and had control over the premises when the motel refurbishment took place in 1997 shortly before the unwritten lease to A R Hancock & Co Pty Ltd.
Hancomatic and its principal, Mr Hancock snr, were ignorant of the particular danger posed by the presence of annealed glass in the sliding door giving access to the motel reception. The door had been installed before July 1972 in according with then prevailing legal standards. The work had been done by a licensed building contractor.
We do not agree with the trial judge’s conclusion that Mr Hancock’s attitude “bordered on willed ignorance” (Red 56). There was simply no evidence to suggest that he, any more than his son and daughter-in-law, knew or ought to have known of the danger stemming from the type of glass.
Standards of what is reasonable may evolve (Jones at 185[58]). However, the plaintiffs point to no evidence showing general knowledge or practice that might support a finding that failure to commission a safety audit and/or replace the annealed glass was negligent in the circumstances.
It was not suggested to Mr Hancock snr, when he was cross-examined, that he knew or should have known of the presence of annealed glass, the risks associated with it or any evolution in building standards that would have made it reasonable for this matter to have been addressed.
We have not overlooked the fact that there were strips on the particular door. This shows that the occupier had some consciousness of the risk that a person might walk into the door if it happened to be drawn closed. (The door had been closed by Mr Anthony Hancock not long before the accident because conditions were windy.) No one suggests that the warning conveyed by reflective strips would necessarily discharge whatever duty lay upon the occupier at the relevant time. But the point of present relevance is that there was at least some advertence to the risk that persons might walk or run into the glass.
The critical aspect of the negligence alleged is the failure to perceive that retention of annealed glass in this particular door was an unreasonable response to the risk of personal injury suffered by an inadvertent adult or child crashing into the glass. What was reasonable had to be judged without the hindsight provided by the tragedy that eventuated (see J & V Pesl Pty Ltd v Ray Smith Tractors Pty Ltd [2007] NSWCA 74; (2007) Aust Torts Reports 81-883 at [76]-[80]). And it was to be determined having regard to the totality of matters presenting themselves for the attention of a reasonable owner of the particular premises.
Applying these criteria, negligence was not established in our opinion.
Hancomatic’s submissions sought at times to justify any failure to replace the glass in 1997 on the basis that it was the role of the adult plaintiffs to suggest the refurbishment work needing to be done. We do not accept this point. There is evidence that Mr and Mrs Hancock’s brief was confined to “cosmetic” refurbishment. They were, in any event, no more expert that Mr Hancock snr.
The refurbishment works in 1997 provided an opportunity for Hancomatic to have replaced the glass but this in itself establishes neither duty nor breach.
The plaintiffs cite the report of their expert Dr Ludcke (Blue 935) in support of the proposition that a safety audit that would have revealed the unsafe annealed glass ought to have taken place by 1987. Dr Ludcke stated that a safety audit “is a basic element of an appropriate occupational health and management system”. But this assertion is unsourced as to its basis and casts no useful light on the existence or content of a common law duty of care in the particular case before this Court.
The appellants advanced additional arguments relating to causation. It is unnecessary to deal with them in the circumstances.
Issues on the Cross Claim
Hancomatic’s Cross Claim against the Council had been framed in the alternative based upon (1) a breach of a tortious duty owed by the Council to Hancomatic and (2) a claim under the Law Reform (Miscellaneous Provisions) Act 1946 stemming from the Council’s breach of duty owed to the plaintiff.
Indemnity was awarded to Hancomatic on both bases (Red 69).
Since the plaintiffs’ claims against Hancomatic have failed the judgment for indemnity against the Council on the First Cross Claims in each proceeding must be set aside.
Nevertheless, the cross claim issues call to be addressed to the extent that they bear on costs.
The matter falls to be addressed in the following context:
(1)The plaintiffs did not join the Council as a defendant.
(2)It is Hancomatic alone that formulated and pressed the claim that the Council owed and breached duties of care towards both itself and the plaintiffs.
(3)The primary judge’s reasons for upholding the Cross Claim included the key finding about the date of commencement of the relevant building work that we have rejected.
(4)Hancomatic’s written submissions as respondent to the Council’s appeals included submissions that supported the judge’s conclusion on the timing issue (Orange 41-44).
There were strands of reasoning in the court below additional to the finding on the timing issue that were supportive of the indemnity awarded to Hancomatic against the Council. Disentangling them from the timing issue is difficult and relatively unproductive given our disagreement with the primary judge on the timing issue.
Since, however Hancomatic supported at least part of the judge’s reasoning on the additional matters we shall address them so far as relevant to our conclusion that Hancomatic should pay the Council’s costs of the First Cross Claim and of the Council’s appeal to this Court.
The primary judge held that ss310 and 314 of the Local Government Act 1919 imposed on the Council “a mandatory obligation to satisfy itself that buildings are erected in conformity with the Act and Ordinances” (Red 65, 67).
Section 310 relevantly provides:
Subject to the provisions of this Act and of any ordinance every building hereafter erected … shall be erected to the satisfaction of the council -
(a)in conformity with this Act and the ordinances.
The relevant part of s314 states:
(1)The council shall consider each application and the plans and specifications accompanying it, and may subject to the provisions of this Act approve, or approve subject to conditions, or disapprove thereof: Provided that --
…
(b)the council shall not approve unless it is satisfied that a building erected in accordance with the application plans and specifications, or any modifications thereof which it approves, would be in accordance with the provisions of this Act and the ordinances.
In our respectful opinion, these provisions do not bear the interpretation placed upon them by the primary judge (see also Sutherland Shire Council v Heyman at 435, 455-6, 482-3). A council’s statutory role in approving building plans is not expressed to dispense with the builder’s statutory obligation to comply with the Ordinances.
We do not pause to analyse the point further given that the ultimate finding by the judge was that the Council was “under a duty to notify [Hancomatic] at the time of ‘approval’ of the motel section of the requirements of Clause 44C” (emphasis added) (Red 68). For reasons set out above we do not accept this formulation of a duty of care.
There could not conceivably be an obligation to draw attention to a provision (like cl 44C) that had no application to building work approved and completed before its making.
These observations touch upon both arms of Hancomatic’s Cross Claim. They show that any suggestion that the Council owed duties of care to either Hancomatic or the plaintiffs with reference to an ordinance that had not even been gazetted at the time of the relevant building approval is quite untenable.
Whether an approval conferred a vested right to proceed in accordance with the law prevailing at the time would depend on the terms of the approval and of any subsequently enacted law impacting upon the matter. It is unproductive to explore these matters given the narrower bases of the judgment under appeal.
There are many additional difficulties with the Cross Claim, as the Council points out in its written and oral submissions in this Court. It is quite unproductive to address them all, given that the conclusions of the primary judge referable to the Cross Claim cannot be supported for the reasons we have already advanced.
There are hints in the pleading of the First Cross Claim that the Council owed and breached duties of care referable to supervision of the building work, independently from alleged duties touching its building approval role. We include in this regard the general allegation in para 5(c) in the Cross Claims that the Council was responsible for inspecting building work for compliance with the terms of any development consent and/or building permit issued by it. Nevertheless, Hancomatic pleaded as against the Council that the relevant building approval was granted in or about August 1971 (paras 9, 12-12B). The shopping complex was in fact approved on 26 August 1971. In these circumstances, later allegations in the Cross Claim that the Council had some duty of care to ensure during 1973 that building work completed after 1 July 1972 complied with cl 44C or to inspect building work in 1973 (paras 14-15) appear to have no basis in pleaded fact, let alone proven fact or law.
The submission that the Council owed a duty of care independent of the approval role towards Hancomatic to stop Hancomatic breaching whatever statutory duty fell upon Hancomatic with regard to the installation of glass is not an attractive one. Furthermore, nothing was alleged, let alone proved, as to some situation in which a Council officer gave advice to Hancomatic about the glass being installed.
Orders
For these reasons we propose that the following orders should be made:
1.Grant leave to appeal in matters CA 40230/06 and CA 40032/06.
2.Uphold all appeals.
3.Set aside orders made in the District court on 9 December 2005.
4.In each proceeding in the District Court make the following orders:
(1)Verdict and judgment for defendant with costs
(2)Verdict and judgment for the cross-defendant on the First Cross Claim with costs.
5.In each appeal by Tweed Shire Council the costs of the Council are to be paid by the first respondent, Hancomatic Music Pty Ltd. Otherwise no order as to costs.
6.In each appeal by Hancomatic Music Pty Ltd:
(1)The second respondent (ie the respective plaintiffs) is to pay the appellant’s costs and to have a certificate under the Suitor’s Fund Act 1951
(2)Appellant to pay the first respondent’s costs.

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LAST UPDATED: 10 December 2007