Wearing-Smith v Swift
[2014] NSWDC 159
•09 October 2014
District Court
New South Wales
Medium Neutral Citation: Wearing-Smith v Swift [2014] NSWDC 159 Hearing dates: 11, 12, 13 & 14/08/2014 Decision date: 09 October 2014 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the amount of $425,000;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORTS - occupier's liability - plaintiff fell off balcony in domestic premises when glass panel of balustrade gave way - whether breach of duty of care - whether contributory negligence Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5E Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Baker v Gilbert & Ors [2003] NSWCA 113
Derrick v Cheung [2001] HCA 48, (2001) 181 ALR 301
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42
McDonald v Robert Bryce & Co Ltd [2004] NSWCA 297
MA Partitioning & Ceilings Pty Ltd v Kezic [2005] NSWCA 414
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sea Coatings (Australia) Pty Ltd v Pascoe [2008] NSWCA 54
Shaw v Thomas [2010] NSWCA 169
Short v Barrett, NSWCA 164, 5 October 1990, unreported
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Thomas v Foreshore Marine Exhaust Systems Pty Limited [2005] NSWCA 451
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442Category: Principal judgment Parties: Peter Wearing-Smith (Plaintiff)
Anthony John Swift (First defendant)
Kim Louise Swift (Second defendant)Representation: Mr B Hughes SC with Mr T Meakes (Plaintiff)
Mr JM Morris with Ms EN Arulrajah (Defendant)
Gorman Jones (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2013/121518 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [2]
Issues
[3] - [5]
Evidence overview
[6] - [7]
Credit
[8] - [21]
Plaintiff
[9]
Mrs Montgomery
[10]
Mr Stobo
[11]
Mr Livingston
[12] - [13]
First defendant
[14] - [15]
Second defendant
[16]
Mr Dobson
[17] - [18]
Mr Mesker
[19] - [20]
Mr Burn
[21]
Facts
[22] - [129]
Plaintiff's background
[23]
Pre-accident description of the premises
[24] - [41]
Accident circumstances
[42] - [126]
Injuries, treatment and subsequent reviews
[127] - [129]
Issue 1 - Probable mechanism by which glass panel gave way
[130] - [135]
Issue 2 - Whether breach of duty of care and causation
[136] - [185]
Issue 3 - Alleged contributory negligence
[186] - [196]
Disposition
[197]
Costs
[198]
Orders
[199]
Nature of the case
The plaintiff, Mr Peter Wearing-Smith, brings these proceedings claiming damages for personal injury against the defendants, Mr Anthony John Swift, and his wife, Mrs Kim Louise Swift, alleging negligence arising out of the defendants' joint occupation of domestic premises at 45 Miowera Road, North Turramurra, NSW.
On the evening of Saturday 5 November 2011, the plaintiff suffered significant injuries to his chest and thoracic spine when he fell from a first floor balcony to the ground below. This occurred when a framed glass panel, comprising part of a balcony fence or balustrade on the first floor of the premises, gave way and collapsed as the plaintiff leaned against it in order to steady himself. The Civil Liability Act 2002 [" CL Act"] applies to the proceedings.
Issues
Apart from considering the credibility and the reliability of testimony of the respective witnesses and determining disputed matters of fact, the issues calling for determination in the proceedings can be conveniently identified as follows:
Issue 1 - The probable mechanism by which the glass panel gave way;
Issue 2 - Whether the plaintiff has established that the defendants had breached the duty of care they owed to him;
Issue 3 - Whether there was contributory negligence on the part of the plaintiff;
During the course of the trial the quantum of the plaintiff's damages was resolved by negotiations conducted between the parties. The parties have agreed that if the plaintiff is successful in the litigation, his damages should be assessed in the sum of $425,000: T123.8.
As a result of that agreement, the evidence adduced on the damages issues was left incomplete, and became superfluous.
Evidence overview
In the case for the plaintiff, oral evidence on factual matters was given by the plaintiff, by his wife Mrs Lyn Montgomery, and by their long time friend Mr Charles Stobo. On the liability issues, the plaintiff also called Mr Ian Burn, an expert consultant engineer.
In the case for the defendants, oral evidence was called on factual matters from Mr Peter Livingston, a sales consultant for a fencing contractor who had inspected the balcony fence first, before the accident "sometime in 2010" and secondly, a few days after the accident. Evidence was also called from each of the defendants, Mr Ian Dobson who is the uncle of the second defendant and the brother of Mrs Montgomery, and from Mr Alexander Mesker, a painter who had painted part of the fence structure of the balcony in 2006, five years before the plaintiff's fall.
Credit
Before identifying my findings of fact and considering the issues calling for decision, it is necessary to record my findings concerning the credibility of the testimony of the respective witnesses.
Plaintiff
The plaintiff gave his evidence in a measured and considered manner. He was careful to identify the limits of his recollection on the factual matters canvassed within the evidence. He avoided speculation and he made concessions where appropriate. Where he disagreed with the cross-examiner he expressed his disagreement in a reasonable way. I considered the plaintiff to be a credible and reliable witness within the limits of his recounted recollection of the events.
Mrs Montgomery
I considered that Mrs Montgomery gave reasonable, credible and reliable evidence which was not relevantly challenged. I had no cause to doubt the veracity of her evidence.
Mr Stobo
I also considered that Mr Stobo gave his evidence in reasonable and credible terms, and his evidence was not relevantly challenged. I considered him to be a reliable witness.
Mr Livingston
I considered that Mr Livingston had an unreliable recollection of key events. His oral evidence went beyond his written statement dated 8 July 2014. Of itself, that difference may not have been a matter of significance, however, Mr Livingston's evidence included elements of unwarranted assumption and reconstruction, and it also involved inaccuracies.
For the reasons outlined in my evaluation of his evidence, I considered those matters undermined the reliability of his evidence on key factual matters. I concluded that in view of concerns over the reliability of his evidence, caution should be exercised before his evidence could be accepted.
First defendant
For the reasons set out in my analysis of his evidence, I considered that the first defendant, Mr Anthony Swift, had exaggerated his evidence as to the manner in which the accident had occurred.
Mr Swift gave varying, and at times, inconsistent accounts in his descriptions of aspects of the incident. He was a hesitant witness who sought to provide analysis rather than unembellished factual evidence. He was at times reluctant to answer questions directly. He was not a careful or considered witness and at times maintained an unresponsive stance to questions asked of him in cross-examination. As a result of those matters, for the reasons set out in my factual analysis, I considered him to be an unreliable witness.
Second defendant
I considered that the second defendant, Mrs Swift, who is the daughter of Mrs Montgomery, and the plaintiff's stepdaughter, gave truthful evidence within the limits of her stated recollection. No credit issues emerged from her testimony.
Mr Dobson
Mr Dobson had been drinking, I infer alcoholic drinks, at the function. He did so for about 5 - 6 hours before the incident occurred. Those circumstances would have had some effect on the acuteness and accuracy of his observations at the time.
Mr Dobson's account of the accident varied materially at times. I considered that his account involved reconstruction and was in part based on assumptions. As a result of those matters, for the reasons identified in my analysis of his evidence, I considered Mr Dobson to be an unreliable witness.
Mr Mesker
In 2006, Mr Mesker's painting contracting company had painted the metal support lugs or posts located at the base of the glass panels of the balcony fence in question. In 2010, he had also carried out painting works to other parts of the premises. His recollection of the details was understandably limited by the passage of time, and by the loss of relevant computer data comprising his records which would otherwise have assisted his memory.
Much of Mr Mesker's evidence was based on a factual account of what he thought would have occurred at the time the relevant painting works were undertaken. There were no concerns over the credibility of the evidence of Mr Mesker. He acknowledged that he did not have the skills of a structural engineer, and some of his observations and conclusions must be considered to be limited in that light.
Mr Burn
Mr Burn prepared an expert's report dated 25 November 2012 and in addition he gave oral evidence. There was no opposing expert evidence called by the defendants. No credit issues arose from Mr Burn's evidence, which stood to be evaluated according to its content.
Facts
Unless otherwise stated, my findings of fact are as follows.
Plaintiff's background
The plaintiff is presently aged 71 years. At the time of his injury he was aged 69 years. His employment history included working in the shipping and airline industries, and in the naval reserve. He had also pursued a career in motoring journalism, authored travel books, and had some involvement in the invention of the USB flash drive device.
Pre-accident history of the premises
The first floor of the defendants' premises included a wrap-around concrete balcony structure that was bounded by a framed glass panelled fence which was at times also referred to as a balustrade. The supporting lugs or posts for those panels were not standard items and were considered to have been of a DIY origin. As I understand the evidence, those lugs supported the glass panels by means of laterally placed steel bolts that passed through each side of the lugs and the glass panels that were sandwiched in the centre of the lugs.
The defendants had purchased the premises on 28 February 2003. Beforehand, they had commissioned a building inspection report dated 18 December 2002. That report from Express Property & Pest Inspections was tendered in evidence: Exhibit "C", Tab 3.
The portion of the report that is relevant to these proceedings concerns the result of inspection of the balcony and handrails where the plaintiff fell, some 8 years later. In that regard, at page 11, the report identified maintenance issues and related recommendations as follows:
"Balcony. The concrete roof slab edges have concrete cancer and spalling render, the lower walls have extensive vegetation cover, remove the vegetation and fully inspect the left elevation slab edges and supporting walls defects may exist. The concrete / tiled surfaces have inadequate expansion joints, provide expansion joints at 4.5 metre centres cracking may occur. The masonry walls above garage have severe cracks have engineer inspect and advise.
Handrails. The glass handrails have no safety glass stickers on the glass panels, have a glazier inspect the glass and upgrade as required. The metal lugs and posts have some corrosion we recommend rust proofing and repainting or simply replacing."
[Emphasis as in the original]
There was no evidence that in the intervening period of 3 years, from when the defendants moved into the premises, and until Mr Mesker carried out some painting work in 2006, any maintenance attention had been given to the corroded metal lugs and posts, and I infer, the bolts, that supported the glass panels, as described in paragraph [24] above.
On 10 March 2006, the defendants obtained a specification and tender quotation from the painting contractor, Mr Alex Mesker of FW Mesker & Co Pty Ltd, for painting work to be carried out at the premises: Exhibit "D".
That tender provided the following general specification for the treatment of rust affected metalwork:
"METALWORK: to be scraped free of rust scale and flaking paint, rust affected areas to be treated with a proprietary rust inhibitor and allowed to react, washed off and the treated areas to be coated with Taubmans All metal Primer and two final coats of White Knight Epoxy Metal Enamel or equivalent quality in colours to be determined."
The 2006 tender quoted $1720 plus GST for work on eaves, barges and fascias, and $878 plus GST to work on pool fence posts: Exhibit "D". There was no specific mention of work being done on the metal components of the balcony structures comprising the lugs, posts or bolts in question. Mr Mesker's 2006 diary did not assist in that regard: Exhibit "3".
In 2010, Mr Mesker also tendered for some painting works at the premises. That tender made no mention of the above structures that were painted in 2006. The 2010 tender related solely to preparation and painting to all previously painted interior surfaces for a quoted price of $15,212 plus GST: Exhibit "D".
There were no pre-accident photographs or more detailed descriptions of the extent to which the metal lugs and posts had been affected by rust, either in 2006, or 2010, or thereafter, until the time of the plaintiff's fall.
Mr Mesker gave his evidence based on his memory of events some 8 years after his company had carried out the painting works in 2006: T120.43. At T121.4 - T121.11. He based that evidence on what he described as his standard process for painting metalwork, which was as follows:
"Q. Do you recall what your standard process was for metal work as at that time?
A. And today - as it is today, the metal is hammered or chipped with a little chip hammer to remove scale - rough scale. Then, once that's clean or de scaled, we use a proprietary rust converter which converts the rust to an inert steel. Once that's done, we apply an oil-based primer which excludes oxygen, and then we finish with an oil-based coat of paint over the final coat, yeah."
It is plain from the above description, that if the standard process described by Mr Mesker had been adhered to, the rust chipping process described by him would not have removed all the rust from the affected areas, but only the rust that comprised rough scale. This left some residual surface rust that had to be treated chemically if the rusting process was to be arrested.
There was no evidence as to the depth of the rust scale that had been removed, and there was no evidence as to the thickness of the residual surface rust that had not been removed and which required the application of a chemical rust converter, nor was there any evidence of the residual thickness of the underlying remaining metal in situ. Nor was there any evidence of the state of the securing bolts at the time the structure was treated and painted over in the manner described by Mr Mesker.
Mr Mesker's brief was to clean and tidy-up the paintwork (T120.24) and to rectify anything that was not good: T120.48. In carrying out that work, he was not applying the skills of a structural engineer: T121.50. His role was focussed on maintenance, namely, to paint and to decorate, without dismantling and re-assembling the elements of the glass balustrade and its supporting lugs, posts and bolts, because to do so could have caused damage to the structure: T122.1 - T122.18.
There was no evidence as to whether the application of the rust converting compounds to the chipped and exposed surfaces would necessarily prevent any residual or underlying rust, including in the shafts of the fixing bolts, from progressing after having been painted over. Any treatment and painting of the bolts would have been limited to the ends and not to the shafts. Furthermore, there is no direct evidence that the bolts of the structure were treated with rust converter with the effect that any rust present, was thereby arrested from progressing further.
I infer from the evidence that at the time of the plaintiff's fall, the condition of the supporting metal structures of the balcony fence was essentially as it had been left by Mr Mesker some 6 years earlier, including whatever effects the effluxion of time had on that underlying condition. There was no evidence of any further maintenance, inspection or repairs having been carried out or applied to the structure in the intervening period.
It follows that before December 2002, the supporting structure for the balcony fence had been affected by rust, which in December 2002, was visible through the paintwork on an external inspection. That rust remained unaddressed and uninhibited until 2006, when Mr Mesker carried out the removal of surface rust scale and the painting work that he described.
Although Mr Mesker did not describe either the thickness of the rust scale that was removed in 2006, nor the residual thickness of the remaining rust-affected metal before it was chemically treated, it can be inferred from the above circumstances that at the time of the accident, the underlying metal structure was not as thick, and its components were not as integral, compared to when it had been initially installed.
It remains uncertain as to the extent to which, in 2006, the application of the rust converting compound and surface paint by Mr Mesker's company was successful in arresting the rusting process, especially the shafts of the bolts.
Accident circumstances
At about 2.00pm on the afternoon of 5 November 2011, the plaintiff attended the defendants' premises to assist to set up for a barbeque function to celebrate his wife's 70th birthday that evening. He had assisted to set up the tables and chairs for the function. He and the defendants were the co-hosts of that function. On this occasion there were about a dozen guests. Beforehand, the plaintiff had been a frequent visitor to the premises.
The function was held on the concrete balcony entertainment area that opened off the dining room on the upper level of the premises. The ground below comprised a garden and a swimming pool.
The function included a buffet style meal, for which a number of tables and chairs had been arranged on the balcony for the guests. The arrangement was of about 5 or 6 tables of differing sizes, including one located near the framed glass fence panelling that bordered the balcony.
Within the evidence of the respective witnesses there were different factual accounts of the plaintiff's fall that require consideration and reconciliation. There was no annotated diagram of the scene provided that might have assisted to achieve a reconciliation of those accounts.
Plaintiff
The plaintiff said that just before the incident in question, which occurred at about 9.00pm, he had been seated at a table near the balcony fence and he was talking to his friend, Mr Stobo. Whilst he was participating in that conversation the plaintiff suddenly experienced a cramp in his lower right leg. In order to relieve that cramp he had stood up in order to weight bear on that leg. In the course of doing so, he felt the need to steady himself, and he did so by reaching out towards the balcony fence with his left hand.
The glass panelled balcony fence or balustrade was located about a metre from where the plaintiff had been standing. Although he does not recall taking any steps towards the balustrade, he must have done so in order to be in a position to be able to then lean against it. Whilst the plaintiff was leaning against the balustrade, a glass panel component of that structure suddenly gave way, and he fell down, onto the rocky garden bed below.
The plaintiff's next recollection was of being in an ambulance, and then later being in the intensive care unit at St Vincent's Hospital on the following day. At that time he was being prepared for an operation that he underwent later that day.
The plaintiff said he did not believe that he had stumbled into the balustrade as was suggested to him in cross-examination. As he recalled it, he had simply put his hand out in order to steady himself after he had risen to his feet from the sitting position.
The plaintiff's account was not in any way improbable. However, it is plain from his account that the plaintiff must have ended up leaning against the structure with some of his body weight in order for sufficient force to be applied to the glass panel to cause the structure to give way.
Mrs Montgomery
Mrs Montgomery said she had observed something of the incident from the balcony whilst she was standing near the kitchen window. She said she had seen the plaintiff get up as if to walk, at which time she observed him to appear to have been unsteady on his feet. She said she then saw him turn around in an anti-clockwise fashion and put his left arm out toward the balcony fence, at which time she saw that he had disappeared from her view, because by then, he had already fallen from the balcony.
Mrs Montgomery could not recall whether she had seen the plaintiff actually touch the glass structure. She stated that these events had occurred "very, very quickly": T35.43; T44.42. Following the plaintiff's fall she then ran down the stairs to assist him.
Mrs Montgomery's account did not seem to be in any way improbable.
Mr Stobo
Mr Stobo stated that before the plaintiff had stood up he had been seated at the table with the plaintiff, where they were engaged in conversation. Mr Stobo estimated that the relevant part of the table where they were seated had been a little over a metre away from the balustrade.
Mr Stobo stated that he had observed the plaintiff to have stood up. At the time he thought the plaintiff had possibly caught his foot on a chair. He thought that at the time, the plaintiff had stood to a fully erect position, but he also thought that something had made him stumble.
Mr Stobo attempted a visual demonstration of the manner in which the plaintiff had taken one step whilst his left arm had been outstretched, following which he then reached for the balustrade. I infer that Mr Stobo must have looked away at that point, as he did not actually see the balustrade fence give way, nor did he see the plaintiff fall.
Subsequently, Mr Stobo's attention had been drawn to the fact of the plaintiff's fall by reason of Mrs Montgomery having screamed words to the effect that the plaintiff had fallen down from the balcony.
Mr Stobo then observed the plaintiff to be laying on his back in the rock garden below, in apparent agony. As to the detail of the structure of the balcony fence, Mr Stobo thought that it also comprised a railing, but he readily agreed that his memory of that fact could have been incorrect, if it was in fact shown to be a glass panel. In my view, nothing turns on that minor discrepancy.
Earlier in the afternoon, Mr Stobo had observed the plaintiff mingling with guests over the preceding 2 or 2.5 hours. Based on his observations over that period of time he was of the view that the plaintiff was not intoxicated.
Significantly, the defendants abandoned their pleaded defence of alleged contributory negligence of the plaintiff due to claimed alcohol intoxication.
There was nothing in Mr Stobo's evidence to suggest that it was in any way improbable.
Mr Dobson
The plaintiff's brother-in-law by marriage, Mr Dobson, said he was seated at a table at the end of the balcony at the time of the plaintiff's fall: T111.40. Mr Dobson gave an at times colourful, somewhat dramatised and assumption-laden description of the incident (at T111.48 - T112.45) as follows:
"Q. You were asked to tell us what you saw.
A. He got up possibly to go to the toilet - I don't know where he was going - he got up, probably caught his foot on the chair or the table, stumbled towards me, because I was out from the table a bit, sitting in the chair with my legs sort of out, just relaxed. And he stumbled towards me, and then I think he probably thought, "I'm going to fall on you," so he corrected himself and then headed to the right, to the glass balustrade, and hit it with his right-hand shoulder. As I explained to the barrister before, if it had been a ruck, he would have been good in Union: he hit it fair and square with his shoulder straight through it, right in the middle of the glass, straight through, and I'd say the glass has saved him from serious injuries because, when he came down on the garden terraces underneath, the glass was underneath him and he was laying on his back on top of the glass.
Q. Do you recall what the glass looked like as he struck it?
A. In what way?
Q. Well, you say he struck it - his body struck the glass.
A. Yes.
Q. Did you notice any change in the appearance of the glass?
A. I can't say I noticed it, but obviously it was broken. It would have been broken, yeah, as he hit it.
Q. But he fell off the balustrade?
A. No, well, he went - when he hit the glass, it's just gone straight out and fallen, and he's gone with it.
HIS HONOUR
Q. Did I understand you correctly to say that his shoulder hit the glass?
A. Yes. If it had been his head, he would have had, I reckon, lacerations on his face. It happened that quick, I mean - I should say I'm assuming, but I'm pretty sure, the way he went down - because he went down like he was going to go into a ruck and maul. But he's hit it really hard with his shoulder, he really has. All his weight - because he's off balance, so that he's weight has just basically gone straight through the glass.
Q. So the way I understand your evidence is that he got up and then went down. Was there a stumbling process in the middle of all that?
A. No, when he first got up, he'd got up from the chair, he's got his foot - or one of his feet - caught in the chair or table, and he's stumbling towards me. He's corrected himself and then he's gone - when he's corrected himself, he's turned his ankle towards - so it's basically, if he was coming from the barrister, this way towards you, he's gone that way and straight into the balustrade but in a closer distance. So he's corrected his - instead of falling on me, he's probably thinking - what do you call it, to stop from falling on me, he's corrected, but he's gone through the balustrade."
Mr Dobson went on to describe the plaintiff as having "probably" made a 90 degree turn before falling: T113.4. That description clearly indicated that Mr Dobson's account was at least in part, based upon assumptions and speculative reconstruction, rather than being an unvarnished factual account of what he had actually observed.
Mr Dobson also described the plaintiff as having made a series of movements in the course of trying to correct his fall over an area of about 2 to 3 metres. However, implicit in his account it is clear that evidence did not constitute an accurate measurement: T113.8 to T113.44. He also stated that the entire event happened very quickly, which suggests a limited opportunity for Mr Dobson to have made observations: T113.46; T113.50. He went on to elaborate and ventured a time estimate of "seconds": T114.2.
Mr Dobson characterised the event as the plaintiff having tripped: T114.5 - T114.9. That account was as follows:
"Q. When you say "tripped", did you actually see him trip?
A. Yeah. He stumbled or trip [sic] on the chair or the table, and I'm assuming that, when he saw he was falling towards me, he tried to correct himself, which put him through the glass."
The above answer also revealed that significant portions of Mr Dobson's evidence was based on assumptions he had made. This was also evident in some of his other answers.
When Mr Dobson's evidence was tested in cross-examination it became plain that his memory was not as precise as the impression he had given in his evidence in chief: T114.32.
Mr Dobson was adamant that the plaintiff's wife, his own sister, had been seated at the same table as himself and the plaintiff: T114.45 - T115.1; T115.35. That evidence was in conflict with the evidence of Mrs Montgomery.
In respect of that conflict in the evidence, I prefer Mrs Montgomery's evidence that she was standing near the kitchen. I arrived at this conclusion because of doubts about Mr Dobson's initially confident evidence which became qualified during cross-examination: T115.5 - T115.9.
Mr Dobson's account faltered significantly under cross-examination. He said he had not given the matter much thought: T115.6. He resorted to colourful hyperbole in his description of the plaintiff's fall, likening it to a rugby tackle: T115.15. That description was remarkably similar to the account given by Mr Swift: T108.12. He didn't agree that the plaintiff had beforehand been seated at the table with Mr Stobo: T115.30. In that regard, in view of the doubts I have identified concerning the reliability of the evidence of Mr Dobson, I preferred Mr Stobo's evidence as being more likely to be correct.
It transpired Mr Dobson had been drinking from about 3.00pm that afternoon and he said he had no reason to have been counting his drinks before the incident at about 9.00pm: T115.43; T116.1. That evidence indicated he had been drinking over a period of about 5 - 6 hours. I infer from the circumstances that he had been drinking alcohol. I also infer that this had impaired the accuracy of his observations, and the accuracy of his recollection of events.
When Mr Dobson was pressed over the sequence of events of the plaintiff's fall, he retreated to an explanation of impaired memory (T116.35) and he speculated on the nature of the plaintiff's stumbling: T116.44. In his description of the event he also sought to dramatise the manner of the plaintiff's fall involving the plaintiff moving towards him: T116.45 - T117.10. He described the event as having occurred "unbelievably quickly" in a range between "a split-second or a couple of seconds": T117.20 - T117.25.
Mr Dobson had not seen the plaintiff put out a hand to steady himself: T117.32; T118.18. In my view, had he truly been observing the plaintiff he would have seen the plaintiff put out his hand to steady himself.
Mr Dobson maintained that the plaintiff had tripped or had got his foot caught by the chair or the table. That evidence of an alleged trip must have involved speculation on his part because, on his own account, he had not been watching the plaintiff's feet: T118.32 - T118.50. When Mr Dobson's evidence was challenged part of his responses became argumentative rather than reasoned: T119.1.
It was the combination of those various descriptions that caused me to doubt the accuracy of Mr Dobson's observations.
For the reasons I have outlined above, I found Mr Dobson to be an unreliable witness regarding his claimed factual account of the key events surrounding the plaintiff's fall on the day in question.
The first defendant - Mr Swift
In the events that followed the plaintiff's fall, Mr Swift had not made any examination of the steel posts or structures which supported the glass panel that gave way at the time the plaintiff fell, as he did not think that to be an important issue at the time: T94.36.
Mr Swift described the incident as having occurred very quickly. Although he did not know the exact duration of time involved he ventured an estimate of 10 or 15 seconds: T94.2.
Mr Swift described his observations of the plaintiff's accident (at T89.43 - T90.1) as follows:
"Q. Shortly before this accident, did you have cause to observe Mr Wearing Smith?
A. Yes.
Q. Tell his Honour, as best you can recall, what you saw and what happened.
A. Okay. I was out on the balcony with the other guests. I saw Peter, who was sitting at our table and chairs, stand up. When he stood up, his left leg gave way completely, and he stumbled to his left and crashed into one of the glass panels at great force. There was a lot of, you know, momentum, mass-"
In his evidence in chief, Mr Swift was asked to elaborate on those events, which he did (at T93.4 - T94.13) in the following terms:
"Q. Mr Swift, I asked you some questions prior to your departure. Could you just tell his Honour again what you observed shortly after Mr Wearing Smith stood up.
A. Okay. He stood up. His left leg gave way and he crashed into one of the glass panels, which gave way. He kept going with the glass panel to the garden bed below.
Q. Was he on his feet at the time he struck the panel, do you recall?
A. Yeah, he was stumbling, and his momentum kept him going. You know, his hip hit the glass panel, and it kept going with him."
In his own estimation, Mr Swift made his observations of the plaintiff's fall from a distance of somewhere between 5 or 6 metres away from the scene where the plaintiff fell: T95.9. At the time he saw the plaintiff stand from the sitting position he was looking directly at the plaintiff and he said he could see the plaintiff clearly: T95.44.
Mr Swift could not say how long the plaintiff had been seated before he had observed him to stand: T96.49.
Mr Swift's account of the plaintiff's fall contained multiple instances of variations within the descriptions he gave, as is summarised below:
(1) He stated that he saw that the plaintiff's legs (plural) gave way when he stood up: T97.20. When that account was queried, he changed it to the plaintiff's left leg (singular) having given way: T97.25; T105.2. Later, he reverted to the plural description that the plaintiff's "legs gave up": T99.35. This indicated some confusion on his part which caused me to scrutinise his evidence carefully;
(2) He initially stated that when the plaintiff stood up, his left leg gave way and he then stumbled to the left and into the glass panel: T89.50. In contrast he described the plaintiff as having walked: T98.30; T98.31 - T98.38. He later retracted the description of the plaintiff having walked and described it as a stumble: T99.11. He later stated that he had assumed the plaintiff had stumbled from the start: T98.38. There was a significant range of variation in the consistency of his evidence in that regard and this led me to suspect that the evidence was assumption based: T103.35;
(3) He estimated that before the plaintiff stood up he had been seated maybe half to 1 metre away from the fence or balustrade: T97.44 - T98.26. His later account of the plaintiff having stood up and then stumbled through some 3 to 5 steps "or something like that" in an arc to the left before "crashing" into the glass seemed to be an improbable description given the relatively short distance travelled. I considered this to be particularly so because he described the plaintiff as having "walked" to the door in circumstances where his leg had given way: T98.39 - T98.48. That evidence was inconsistent with his evidence of the plaintiff stumbling rather than walking;
(4) When questioned on the nature of the plaintiff having stumbled he said "I think he stumbled straight from the beginning into the glass": T99.49. His use of the expression "I think" to describe those events suggested that he was unsure of his recollection and that he was in fact engaging in a process of inaccurate and therefore unreliable reconstruction;
(5) In the context of the incident having occurred very quickly, he initially described the interval of his observation of the incident as being of the order of maybe 30 seconds: T94.43. In contrast he then reduced this to "no more than a couple of seconds": T93.45. This was then varied again to an estimate of 10 to 15 seconds: T107.31. He later agreed that it all happened in a split second, or in a second or two: T107.42. This suggested that Mr Swift's observations were not accurate and were not reliable, as they included a wide range of variation as to timing;
(6) Given that Mr Swift's vantage point for observing the events leading to the plaintiff's fall was from a distance of 5 or 6 metres away (T95.9), his account of the plaintiff, whilst his left leg had given way (T97.25) having stumbled towards and past him in an arc before hitting the fence (T104.20 - T105.30) coming as close to about a metre to Mr Swift in that process (T106.47), seemed to be a highly improbable reconstruction of the events. This seemed to me to be especially so given the very quick time frame described by the respective witnesses;
(7) He did not know the distance over which the plaintiff stumbled yet he sought to provide estimates instead of simply reiterating that he did not know: T98.5; T98.16; T98.27.
In the circumstances described above, I considered that Mr Swift was not a careful witness.
Mr Swift sought to dramatise the events in an exaggerated manner by his use of dramatic language such as "smashing" (T93.23), "crash" or "crashed" (T105.32; T105.47; T109.13) and likening the plaintiff's contact with the balustrade as a "rugby tackle" (T108.5) as Mr Dobson had done (T115.15) and he described the force of the contact as "very strong and intense": T108.50.
When cross-examined, Mr Swift was prepared to adopt a formulation that suggested the plaintiff had moved in a manner akin to a "run" before coming into contact with the balustrade, which indicated an element of unreliable suggestibility on Mr Swift's part. This description was significant and odd because that evidence was out of kilter with all other witnesses: T110.29.
Mr Swift said the plaintiff would have taken 3 to 5 steps or more: T104.44. He said when the plaintiff's left leg gave way from the moment he stood up, he kept stumbling to the left, suggesting an exaggerated description: T106.7 - T106.30.
I considered that Mr Swift gave a reconstructed account in which he described the plaintiff's movement as being initially away from the balustrade (T99.8) and then walking towards the door and then stumbling away and towards the balustrade, then hitting the glass: T99.4 - T99.50. That was in contrast to the impression that he conveyed in his account of the plaintiff standing up, his leg giving way, and then stumbling and crashing into the glass: T100.2.
Mr Swift agreed that from his vantage point, if the plaintiff had put his hand out towards the glass as he described, he would have seen it: T101.1. In my view, the fact that he did not see this, when taken with the other evidence which I accept to the effect that the plaintiff did put out his left hand to steady himself, indicates that Mr Swift was not providing a correct or accurate factual account of the events.
Mr Swift's differing accounts of the plaintiff hitting the glass with his left hip (T102.14) as distinct from his whole body (T102.37; T103.46) were difficult to reconcile. When challenged on that matter he then retreated to a position of not recalling that detail, yet beforehand, he was prepared to confidently speculate on the matter without qualification.
Mr Swift was hesitant in his answers to a significant degree on a number of instances. Examples of this were at T100.4; T100.28; T103.36; T109.21. Those hesitations suggested that in giving his evidence, Mr Swift was engaging in a process of reconstruction based on assumptions rather than providing an accurate account of the events upon which he was being questioned: T99.20; T101.26; T101.34; T103.38.
Mr Swift gave a number of unresponsive answers to questions put to him in cross-examination, whereby he sought to convey his point of view rather than simply providing a factual account, for example at T103.19; T103.47.
I am satisfied and consider that Mr Swift has engaged in a process of reconstruction rather than providing an unvarnished and unembellished factual account of his observations. The foregoing review of Mr Swift's evidence lead me to the conclusion that his evidence is unreliable and that the reasonable accounts given by the plaintiff and his wife should be accepted in preference to Mr Swift's account because, on the balance of probabilities, they are more likely to be correct.
The second defendant - Mrs Swift
Mrs Swift did not actually witness the plaintiff's fall as she had been inside the house and therefore out of view of those events: T84.19. She had only seen the aftermath of the incident. All she saw was that the glass panel of the balustrade had disappeared after the plaintiff had fallen: T84.28.
Mrs Swift had been aware that a pre-purchase building inspection report had been obtained in respect of the premises before she and her husband had bought the premises, and although she had probably read the report at the time, she could not recall the details. This is because she had left that aspect of the transaction to her husband to deal with: T82.23 - T82.34.
Mrs Swift also recalled that in 2006 Mr Mesker had undertaken some exterior painting work, including "all the steel poles supporting the pool fence and the upstairs balustrade": T82.45.
Mrs Swift recalled that in 2010, Mr Livingston had attended the premises to quote on replacing the glass fencing around the pool, as it was at that time non-compliant with the new building code: T83.35.
Mr Livingston had also been asked to consider erecting a new glass balustrade on the upstairs balcony. However, at the time, due to cost considerations, Mrs Swift and her husband elected to only replace the pool fence, and to leave the upstairs glass balcony fence in place: T83.9.
Mrs Swift's recollection of the condition of the metal supports for the upstairs glass balcony fence, before the painting works had been carried out (at T83.15) was as follows:
"Q. Do you recall any staining on the paintwork?
A. The poles were steel, not stainless steel, and they had surface rust. Alex took the rust off and rustproofed it and repainted them in a charcoal colour."
It was plain from a consideration of her evidence as a whole, that Mrs Swift had not actually observed the process of rust treatment referred to in the preceding paragraph. Instead, she was expressing a conclusion to that effect.
Mrs Swift stated that before the plaintiff's accident she held no concerns over the upstairs balcony balustrade: T85.7. She stated that the only reason the upstairs balcony fence had not been replaced in 2010 was that the cost "was prohibitively expensive": T86.24.
At T86.43 - T87.8, Mrs Swift set out her limited understanding of the painting works carried out by Mr Mesker in 2006. That evidence, which was based on assumptions, was as follows:
"Q. Would you say he painted the steel stanchions themselves because they had discoloured?
A. They had surface rust on them, yeah. And I'm not sure how he did it, if he burnt it back, if he just I think rubbed it back and treated it with rust proofing. I mean, that was what he said he was doing in the quote, and he's done work for us before, and I've always had faith in him doing what he said he would do.
Q. But you know he's not a structural engineer or anything of that sort.
A. No, he's not. He's a painter.
Q. It was cosmetic, what he was doing?
A. There wasn't rust through that it needed replacing. It was only surface rust, yeah.
Q. That's what he treated?
A. Yes."
Mrs Swift stated that in 2011, the glass panelled upstairs balcony fencing was replaced after the plaintiff's fall. This occurred after Mr Livingston had been called to provide a further quotation for repairs a few days after the accident: T84.36 - T85.3.
Mr Livingston - sales consultant
Mr Livingston had prepared two statements relating to the events. The first statement was dated 12 September 2013. The second statement was dated 8 July 2014. Only the latter statement was tendered in evidence: Exhibit "2".
Mr Livingston's company had carried out the pool fence works at the premises in 2010. At that time the defendants elected not to have the balcony balustrade replaced because of cost considerations.
Mr Livingston inspected the site shortly after the accident. He stated that he was interested in knowing why the accident had happened: T72.28. In his evidence in chief he stated that from his recollection, after the accident, all the supporting posts, brackets, and bolts of the structure were in order, and that the only thing missing was the glass: T72.29.
Mr Livingston's observations in that regard were not based on any formal qualifications of an engineering kind: T72.45 - T72.48. His inspection was carried out on the basis of his role as a salesman for a pool fencing company: T73.22. Accordingly, I do not consider his evidence to be in the category of expert evidence in the same sense as the engineering based evidence given by Mr Burn.
When asked to clarify what he had meant by his comment of the structures being "in order" Mr Livingston stated that there was no damage to the post (sic), the brackets, and there was "no indication that they had given in any particular way": T72.35.
That evidence by Mr Livingston expanded upon the content of the first statement he had prepared on 12 September 2013, which was almost 2 years after the occasion of his inspection. That fact, together with his admittedly faulty memory (T78.44 - T79.5) and what I consider to be his reconstructed memory based on guesswork, which included the concession that he could be mistaken about an important detail (T80.29 - T81.2), caused me to doubt the reliability of his evidence as to the observations he had made of the structure a few days after the accident.
The important detail in question concerned the location and condition of the supporting mechanical structure for the glass panel that had given way.
Whereas at T72.29 Mr Livingston said he had considered those structures to have been in good order, when that evidence was tested, it became apparent that in the context of having carried out "many many inspections and quotations" between November 2011 and September 2013, including up to 5 or 6 such inspections per day: T79.33 - T79.43. This was in circumstances where he had not photographed or sketched the area (T77.1 - T77.5), or made any reviewable notes of the remaining structures: T77.16.
In those circumstances, I consider that his evidence as to the condition of the supporting structure of the glass panel at the time of his inspection in November 2011 should be seen as being questionable and unreliable.
Although Mr Livingston claimed he had tested the post, he conceded he had not tested the glass at the time of his inspection, and he also conceded that he had based his conclusion on a visual inspection of the glass as to its appearance, and it seemed fine to him: T74.37 - T74.43.
It transpired that notwithstanding Mr Livingston's initial evidence, that in his view, "everything was in place" except the glass at the time he inspected the damage (T80.42), in fact "the bolt" securing the structure was not in place: T80.44. This significant variation in his evidence caused me to doubt the reliability of his evidence.
When Mr Livingston was pressed on the issue of whether or not the bolt was present, he conceded that aspect of his evidence was possibly based on guesswork (T80.50) and he could be mistaken: T81.2. In fact, he could not specifically recall whether a bolt was there to be seen at the time of his inspection (T81.13) and had no memory of seeing bolts in place: T81.29.
Notwithstanding those deficiencies in his recollection, unbelievably in my assessment of his evidence in that regard, Mr Livingston remained adamant, and stated that "as far as I am concerned, those bolts were in place" when he carried out his inspection: T81.24.
In my view Mr Livingston's evidence on the description of the damaged area of the structure was based on an unreliable reconstruction on his part.
Mr Burn - consultant engineer retained by plaintiff
Mr Burn had been retained by the solicitor for the plaintiff to provide an expert engineer's opinion. This was on terms that deferred the timing of the payment of Mr Burn's fees until the litigation had concluded, thereby leaving it open for the plaintiff's solicitor to approach him to see if any fees owing could be waived if the plaintiff's case failed: T56.22.
In my view, that arrangement, whilst unusual, falls short of an arrangement whereby the payment of fees is contingent on a successful outcome of the proceedings. Nothing of significance turns on the arrangement made between the plaintiff's solicitor and Mr Burn for the deferral of payment of his professional fees.
Mr Burn was of the opinion that the method by which the balustrade failed was because the securing bolts had corroded sufficiently so that when pressure was applied to the glass portion, the bolts snapped, permitting the glass panel to swing down: T57.42 - T57.44. He elaborated upon that mechanism as follows, at T58.36 - T58.45:
"Q. Mr Burn, just before we broke for morning tea, you expressed a conclusion as to how the glass panel was caused to fall or fell into the garden below. What are the facts upon which you rely in coming to that conclusion?
A. The method used to secure the glass panel to the posts was, from looking at the photographs, four bolts, which would be through the glass panel and through the bracket on the post. If one of those bolts fails because of corrosion, the panel is going to pull away from the bracket and just by the - if one bolt is corroded, unless one of the other three bolts has been replaced, they will be in a similar state of degradation. So, as the panel falls away, the increased load on the other bolts is going to cause them to snap as well."
Mr Burn identified the need to determine whether the shafts of the bolts had been affected in the area where they passed through the brackets and the glass: T61.6. Mr Mesker did not undertake an assessment of that kind when the structure was painted in 2006 because he had not dismantled the components of the structure.
Mr Burn commented (at T60.17 - T61.14) upon the in situ process by which the supporting bolts for the glass portion of the balustrade would have corroded:
"Q. You refer in your second report to there being a difference between the quotation from 2006 and the work specifications in 2010.
A. Yes.
Q. The difference being no reference to work to be carried out in relation to the corrosion that had been earlier referred to in the report from 2002.
A. Yes.
Q. You assume, therefore, that that work was not carried out in 2010, as recommended in 2002.
A. Yes.
Q. And you saw some significance in that.
A. Well, in 2002 the lugs were identified as being corroded, and one of the recommendations was that they be replaced. 2010, which is eight years later - if no work had been done, the bolts would still be in the state of having to be replaced.
Q. Would you expect, based on your experience, that any corrosion would have continued during that time?
A. Unless they'd been covered up with paint or something in the meantime, yes, it would have continued.
Q. You make reference in your report to the way to properly test the depth of the corrosion, and you refer specifically to unscrewing and re-screwing the particular fixture. Is that right?
A. Yes.
Q. What's the purpose of that?
A. You can only see the corrosion on the outside, at the end of the bolts and nuts. To determine how much it's affected the shaft of the bolt and that through the bracket, through the sheet of glass, you'd have to physically look at that.
Q. And to do that you'd have to undo it.
A. You'd have to undo it, yes.
Q. And merely painting over the end of the bolt, how would that affect, positively or negatively, the integrity of the bolt itself.
A. It will have minimal effect on the shaft through the bracket and through the glass. It will only protect the end which has been painted.
HIS HONOUR
Q. Sorry, does that mean, if there's a corrosive process already affecting the shaft, notwithstanding that the end is painted, the shaft would continue to corrode?
A. Yes."
Mr Burn elaborated upon the method of bolt failure (at T62.6 - T62.45) as follows:
"A. If the bolts were in good order when he leant against it, it wouldn't have given way. When he leant against it, the load he put on the balustrade was more than the bolts could handle, so they failed.
Q. So what was the sort of load that you expected Mr Wearing Smith to have applied to this balustrade?
A. Anywhere from 1 kilo up to 50 kilos, depending how hard he leant against the rail.
...
Q. Would you have to change your theory as to the mode of failure if the force applied to this balustrade was substantially in excess of 1 to 50 kilograms?
A. No, just the - depending on the state of corrosion of the bolts and how sound they are as to the force required to make them fail.
Q. Are you telling his Honour that one bolt failed or they all failed?
A. I'm of the opinion that one bolt failed and, as a result of that one bolt failing, the transfer of load to the other three bolts caused them to fail, like a zipper effect sort of thing.
Q. You're assuming that all four bolts failed.
A. Ultimately, yes.
Q. Do you have any instructions as to what type of bolts these were?
A. No.
Q. Do you have any instructions as to whether these bolts had been treated with either zinc or cadmium for rust resistance?
A. No.
Q. Have you, in giving your opinion, assumed that these are untreated mild steel bolts that were amenable to rust?
A. I have assumed that they're either mild steel or galvanised bolts which have corroded sufficiently: galvanised, has lost its effect."
Mr Burn was of the view that the bolts in the balustrade fixing mechanism must have failed, and although it was possible that the glass, which was laminated, may have failed, that latter proposition was unlikely to have occurred because of the thickness of the glass, making it more plausible that a corroded securing bolt was more likely to break: T65.10 - T65.25.
Based on his albeit limited experience and understanding of the way laminated glass cracks and shatters (T66.40), Mr Burn considered that the suggestion the laminated glass had failed was highly unlikely, as he explained at T66.1 - T66.20:
"Q. You could have had an invisible defect in this glass, could you not?
A. It's a possibility.
Q. You see, there is a range of possibilities as to how this may have failed. Do you agree?
A. There are other ways it could have failed but, as I said, in my opinion, the most logical and apparent reason for failure would be the corrosion of the bolts holding the glass in place.
HIS HONOUR
Q. What compels you to that view as opposed to other possible causes?
A. Generally glass balustrades are reasonably sound; they last a good amount of time. This information here says it was laminated glass. Laminated glass is very difficult to fracture, so to pull a bolt through laminated glass would be exceedingly difficult. One of the reasons they make car windscreens out of laminated glass is because they prevent the majority of rocks thrown up from going through and therefore the potential for driver fatalities. I would therefore consider it highly unlikely that the bolt could have been pulled through the glass and for the panel to fall away, leaving the bolt on the post."
Mr Burn considered other potential mechanisms of glass failure as being possible, but he considered them to be remote in the circumstances of this case: T70.12 - T70.34.
Injuries, treatment and subsequent reviews
When the plaintiff fell he suffered crush fractures to his chest requiring surgical repair. He also sustained a fracture of the body of T12 which was unstable, and required a fusion at the level T11/T12.
Between 5 and 14 November 2011, the plaintiff remained an in-patient at Royal North Shore Hospital for 9 days: Exhibit "B", pages 1-197. Following surgical decompression of the thoracic spine at T12 with screw fixation, the plaintiff was fitted with a brace for mobilisation. He was discharged into the care of his general practitioner for wound care, management, and monitoring of his mobilisation.
The plaintiff had related soft tissue injuries that no longer require detailed consideration following the agreement of the parties concerning quantum. No credit issues arise from those matters.
Issue 1 - Probable mechanism by which glass panel gave way
In considering the mechanism of failure of the glass panel, on the balance of probabilities, I find that one or more of the four bolts holding the glass panel in place at its base failed due to corrosion having weakened those structures, as explained by Mr Burn in the evidence I have already cited.
I find that Mr Burn's expert explanation of that mechanism was cogent, plausible and provided a rational cause for the panel to give way. Mr Burn's explanation combines a commonsense understanding of the progression of the rusting process with his expert engineering understanding of the way in which the material in question is affected by that process. Notwithstanding that there was no reliable evidence of the condition of the bolts, either when painted over in 2006 or after the panel gave way in the events of the accident, and in the absence of precise expert evidence as to the mechanism of failure based on an examination of the bolts, I infer that the rusting process continued so as to weaken the bolts to the point where they sheared or gave way when the plaintiff leaned upon the balustrade. The absence of precise expert evidence does not obstruct the pathway to that finding: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538; Sea Coatings (Australia) Pty Ltd v Pascoe [2008] NSWCA 54, at [47]; Thomas v Foreshore Marine Exhaust Systems Pty Limited [2005] NSWCA 451, at [64]; MA Partitioning & Ceilings Pty Ltd v Kezic [2005] NSWCA 414, at [71]; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, at [90]; McDonald v Robert Bryce & Co Ltd [2004] NSWCA 297, AT [110].
In the absence of evidence of the bolts having been dismantled and treated for rust at the time Mr Mesker's company carried out painting works in 2006, given the presence of scaled rust on the lugs at that time which was advanced to the point of having to be chipped off the lugs, I find it more probable than not that the securing bolts were also affected by rust and that a progressive rusting process had set in and had continued unabated until the time of the plaintiff's fall.
This would explain why, as suggested by Mr Burn, an applied force of between 1kg and 50kgs would have been sufficient to dislodge the glass panel so that one or more of the bolts would have been pulled through the holes in the glass thus causing the panel to give way as the plaintiff leaned on the structure.
For the reasons advanced by Mr Burn I find it unlikely that the laminated glass failed in the events of the accident.
I also reject as fanciful the descriptions of Mr Dobson, and especially Mr Swift, which sought to convey the impression that the plaintiff struck the panel with great force and momentum. I consider that evidence to have been tailored to suit an argument that the structure was otherwise sound and that a great force had been applied to cause the panel to fail.
Issue 2 - Whether breach of duty of care and causation
As occupiers of the premises, the defendants owed the plaintiff a duty to take reasonable care, including to take precautions against the risk of injury occurring due to a condition of the premises which they knew or ought to have known to represent a foreseeable risk of injury to persons such as the plaintiff: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479.
The plaintiff's allegations of negligence against the defendants were as follows:
(a) Allowing the plaintiff access to the offending balcony area when the defendants knew, or ought to have known, that the balustrade/handrails was dangerously corroded in the circumstances;
(b) Failing to warn the plaintiff as to the state of the offending balustrades in the circumstances so as to ensure his safety;
(c) Failing to rectify the corrosion of the metal lugs and posts by either rust-proofing and re-painting or replacing same;
(d) Failing to properly and/or adequately inspect the offending balustrade/handrails prior to allowing the plaintiff access to the balcony;
(e) Failing to heed the Property Inspection Report dated 18 December 2002 which put them on notice that the offending metal lugs and posts were dangerously corroded and required replacing.
Section 5B of the CL Act provides the required framework for consideration of the question of whether the defendants had been negligent as alleged. That section provides as follows:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
In considering whether the defendants had breached the duty of care owed to the plaintiff, in the context of a consideration of s 5B(1)(b) and (c) of the CL Act, the essential questions are: whether, in the circumstances where it was foreseeable that a number of guests would be in close proximity to the balustrade, the defendants ought to have known there was a potentially dangerous defect due to corrosion in components that supported the balustrade structure; and whether, in these circumstances they failed to take reasonable steps by way of precautions, to either rectify or address that defect if they intended to allow the balcony to be used to entertain guests who would not know of such defects, or alternatively, to isolate the balcony from guest access.
In this case, the context of the consideration of the foreseeability of harm was the fact that a significant number of guests, about a dozen or so, were expected to use the balcony on the day of the accident: T13.44 - T13.48.
Those guests were likely to be on the balcony near the balustrade, the purpose of which was to prevent persons falling to the ground below. In my view, the anticipated number of guests in the relatively confined area of the balcony and in close proximity to the balustrade (which had earlier been the subject of a recommendation for replacement, and which had not been the subject of an inspection for structural integrity in respect of any of its component parts) rendered the risk of harm from failure of the balcony, to be a reasonably foreseeable one: s 5B(1)(a) of the CL Act.
The tables that had been placed on the balcony had been arranged so that guest seating would be located close to the balustrade. It was therefore important for the defendants as occupiers of the premises to give some consideration to safety issues in those circumstances, especially where the possibility of a guest falling from the balcony was foreseeable, and the risk of that happening not insignificant: s 5B(1)(a) and (b) of the CL Act.
The mere presence of a mounted glass balustrade at the edge of the balcony did not necessarily reduce the significance of the risk of a fall in circumstances where, to the knowledge of the defendants, there had been an earlier recommendation to replace the balustrade with a taller structure with stickers on the glass to make it compliant with changed fencing requirements, and that recommendation had been considered by the defendants and rejected due to considerations of cost.
However, that said, the preceding paragraph should not be taken as being a criticism of the defendants for not taking the opportunity, in 2010, to replace the existing balustrade fence with a structure that was compliant with the then current requirements of the building code that came into force after the defendants took possession of the premises.
Critically, in 2002, the defendants had been advised to have the rust affected area of the balustrade mountings treated, or alternatively, to replace the structure.
Whilst it was understandable that at the time, the defendants baulked at the cost of replacement, such a stance necessarily required that reasonable maintenance care be taken in the form of dealing not only with surface rust, but also ensuring that the structural component parts were either not affected by rust, or if they were, that those components be properly treated or replaced so as to maintain safety.
This was particularly so in circumstances where it was foreseeable that the first floor balcony would be used as a guest entertaining area. If the component parts of the structure were not sound, guests leaning on the balcony balustrade could foreseeably fall to the ground below if the structure gave way.
The defendants submitted that they should not be held liable to the plaintiff in negligence because they were not skilled in the building trades, they had engaged a professional painter (in 2006) to undertake remediation works identified in the 2002 pre-purchase inspection report, and the professionals engaged had not identified any structural or safety issues: Defendants' written submissions, paragraph [36], sub-paragraphs (a) to (c).
In my view, that submission should not be accepted as it involves oversimplification. There was a four year delay between the identification of the defects outlined in the pre-purchase inspection report and the painting works undertaken by Mr Mesker, and a further 4 years passed before Mr Livingston made his inspection.
Neither Mr Mesker, a painter, nor Mr Livingston, a salesman, were qualified to comment on structural matters.
The defendants further submitted that before the function in question, there was no evidence that the supporting bolts or any other parts of the structure of the balustrade were rusty, or were rusty after the painting works carried out by Mr Mesker. It was further submitted that absent any looseness in the glass panel, the defendants were not aware of any rusty bolts as the structure had not been dismantled at the time of painting: Defendants' written submissions, paragraph [38], sub-paragraphs (d) to (g).
In my view, that submission is misplaced and should not be accepted given the evidence of Mr Burn that described the manner in which the bolt could have rusted, and the failure of the defendants to obtain any structural advice, especially in the absence of the structure being disassembled for rust proofing and painting purposes.
I am satisfied that the combined effect of the defendants having obtained the pre-purchase building inspection report dated 18 December 2002, and in 2006 arranging for a painter, without structural qualifications of any kind, to attend to the identified surface rust in the manner described in the evidence of Mr Mesker, without any consideration of the state of the component parts of the supporting structures, ought to have raised in the minds of the defendants the question of whether the rust so identified had been adequately addressed from a structural and safety viewpoint.
Furthermore, I am also satisfied that in the period spanning from the time the painting works were carried out in 2006, and until the time of the incident in question, the defendants gave no further consideration to the structural soundness of the balustrade structure.
Whilst the identified surface corrosion of the lugs at the base of the structure may have well been treated in 2006 in the process described in the evidence of Mr Mesker, given that the structure was held together by bolts, absent specific evidence that the bolts were in a position where they were not liable to rust, or that they had been successfully treated with rust converter, on the balance of probabilities, based on the logical explanations provided in evidence by Mr Burn, I am satisfied that the shafts of the bolts in question must have been affected by corrosion at the time of the plaintiff's fall because they had not been treated for rust either in 2006 or in the interim period, and they were no longer integral when the glass panel gave way in the events of the accident.
In my assessment, on a prospective consideration of the chronology of events, in 2002, and thereafter, a reasonable person in the position of the defendants would have taken precautions by taking advice and action to ensure the structural soundness of the balustrade before allowing guests to be in close proximity to that structure: s 5B(1)(c) of the CL Act: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442.
I am reinforced in that view because, from early times within the knowledge of the defendants, in 2002 and 2006, they were on notice that replacement of the structure, or proper remedial treatment of rusted components, was recommended as being necessary. Absent those precautions, it was very probable that the balustrade, or a component panel of it, might foreseeably give way because those components formed the basis of the structural integrity of the balustrade: s 5B(2)(a) of the CL Act.
In my view, in the context of consideration of a possible fall from a first floor balcony, the precautions referred to above were required because a person falling from that height was very likely to sustain a variety of serious injuries: s 5B(2)(b) of the CL Act.
In those circumstances, the nature of the burden on the defendants in this case required that they take reasonable precautions to ensure that all structural components were sound, integral and safe.
This could have been achieved either by ensuring all components of the supporting structure likely to be subject to attack from rust were adequately treated in a way that addressed the problem of corrosion without compromising the protective purpose of the structure, or absent any inquiry by the defendants along those lines, replacement of the structure: s 5B(2)(c) of the CL Act. This is because the balustrade in question was a safety feature on the balcony, and was not merely a decorative architectural feature.
In my assessment, the nature of the relative burden on the defendants to take precautions along those lines was not a great one in the circumstances although this would have necessarily involved some cost.
The defendants had seen fit to follow advice to replace a pool fence on grounds of safety. In choosing to avoid the cost of replacing the balcony balustrade when that was also recommended, and in choosing the course that entailed lesser expense, namely painting, they did not seek to obtain advice as to whether that course had any adverse structural implications, either in the short or the longer term. Instead, they relied upon the limited expertise of a painter, apparently without further inquiry, where that painter was not qualified to consider matters of structural soundness.
Whilst it must be recognised that one of the burdens of home ownership is that from time to time expense has to be incurred with respect to maintenance and safety issues, and that such expense can at times strain the household budget, this does not absolve occupiers from giving proper consideration to potential hazards and risks to the safety of persons likely to be legitimately present on the premises.
In my view, in the circumstances of the defendants' historical knowledge of the corrosion and maintenance issues of the structure in question, absent being advised and satisfied on reasonable grounds that the balustrade was structurally safe, as an alternative to the above precautions, the defendants could also have taken the simple precaution of restricting guest access to the balcony. They could have simply entertained their guests in another area of the premises that did not pose a risk to guest safety on account of the balustrade giving way due to inadequately addressed corrosion of a supporting component or components of the structure.
In coming to that view I have been mindful of the admonition that the obligation to exercise reasonable care does not impose a duty to prevent potentially harmful conduct: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [18]; Shaw v Thomas [2010] NSWCA 169, at [47].
However, in my view, the exercise of reasonable care required that the defendants consider and respond to the risk of failure of the balustrade before allowing guests near the balustrade in question: Derrick v Cheung [2001] HCA 48, (2001) 181 ALR 301, at [13].
The defendants relied upon the authority of Short v Barrett, NSWCA 164, 5 October 1990, unreported. That case involved the failure of balcony railings secured only by nails. The railings had given way when they had been lightly leaned upon, causing an invitee guest to fall to his death.
In that case, in giving the reasons of the court, at page 8, R Meagher JA held that:
"... In my view, a householder in the position of Dr or Mrs Short is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they either actually know it is unsafe or else receive a warning that it may be unsafe."
The observations in cases such as Short v Barrett have been characterised as merely representing guidelines to be applied in determining the actions of a reasonable person in the particular circumstances, when responding to a foreseeable risk: Baker v Gilbert & Ors [2003] NSWCA 113, at [30].
In submissions in the present proceedings, counsel for the defendants conceded that Short v Barrett was a decision based on the particular facts of that case: T134.1.
In my view, a significant feature of this case that distinguishes it from the position in Short v Barrett is that the defendants in the present case had notice of an underlying problem of rust in the steel components of the balustrade, as was identified in the 2002 pre-purchase inspection report.
That rust problem remained unaddressed until 2006 when Mr Mesker chipped scaled rust from the lugs, applied rust converter, and then painted over those structures. These circumstances are very different to the position in Short v Barrett (at page 8) where the defendants did not have "actual knowledge of how the balcony was constructed ... [and] ... it had never occurred to either of them that any part of the balcony might be unsafe" and where "no occasion ever arose for assaying" structural matters.
In contrast, in the present case, the defendants were advised of the presence of rust, and of the need for it to be appropriately treated or to replace the structure.
Despite that advice, the defendants took no active steps to satisfy themselves of the structural safety of the balustrade and its supporting components. There was no assay of the safety of the structure. Given that Mr Mesker was a painter, the defendants could not have reasonably assumed that the painting work that he carried out had the effect of ensuring structural soundness of the areas that he said he had chipped free of rust.
Nor could the defendants have reasonably assumed that Mr Mesker, as a painter who had not dismantled the structure, would have in the course of his work, identified structural problems in the balustrade if they existed. Since he had not undertaken any dismantling of the structure, he was not in a position to determine whether or not the shafts of the mounting bolts were corroded.
As a result of the foregoing consideration, I find that the defendants failed to consider or recognise that corrosion of the supporting components of the balustrade or fence that had been first identified in 2002, had weakened the structural soundness of the balustrade.
I therefore find that the defendants failed to take reasonable and available safety precautions in conformity with the duty of care they owed to the plaintiff. In summary, that breach of the duty of care involved failure to ensure the structural soundness of the balustrade, and failure to isolate the area from guest access.
The question of the social utility of the activity on the day in question, as contemplated by s 5B(2)(a) of the CL Act, does not arise for consideration in this case.
The plaintiff must show that his injuries were relevantly caused by breach of duty of care by the defendants: s 5E of the CL Act.
The defendants have submitted that the plaintiff has not established factual causation as required by s 5D(1)(a) of the CL Act, and that the plaintiff has not established the elements of the scope of liability as required by s 5D(1)(b) of the CL Act. For the reasons that follow, I do not accept those submissions.
Section 5D of the CL Act provides:
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
If the bolts that held the glass panel in place had not corroded they would not have failed and caused the glass panel to give way. This was the necessary condition for the harm to occur, and this establishes factual causation according to the "but for" test: s 5D(1)(a) of the CL Act: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182, per the majority at [18] and [32].
As the defendants were occupiers of the premises, and had been made aware of the issue of rusting of the supports for the balustrade from the outset of their occupation of the premises, and had engaged a painter to address that issue, it is appropriate that the scope of the liability of the defendants be extended to the circumstances of the plaintiff's fall at the premises on 5 November 2011: s 5D(1)(b) of the CL Act.
No exceptional circumstances have been shown to exist so as to preclude a finding of causation and liability for the plaintiff's injuries: s 5D(2) of the CL Act.
As the plaintiff has established the elements required to prove causation, I therefore conclude that the defendants were negligent and that such negligence was the relevant cause of the plaintiff's injuries.
Issue 3 - Whether there was contributory negligence
During the hearing the defendants obtained leave to plead an amended defence in which they abandoned the claim that the plaintiff was intoxicated, and that his judgment had been impaired at the time of his injury. Accordingly, the amended defence deleted paragraphs [10] to [14] of the previous defence filed.
The remaining particulars of the defence of alleged contributory negligence that require consideration are as follows:
(a) Failure to take appropriate care for his own safety;
(b) Failure to secure a proper foothold;
(c) Attempting to stand and walk in circumstances where he may have been unable to support himself.
Those allegations are considered in the paragraphs that follow.
As to (a) - alleged failure to take appropriate care
In my view, the evidence does not support the assertion that the plaintiff had failed to take appropriate care for his own safety. At the time of his injury the plaintiff was undertaking the unremarkable and commonplace task of getting himself up from the seated to the standing position. He did so in order to relieve a cramp of sudden onset that he was experiencing in his right lower leg.
I accept that he only took one step when he experienced a momentary unsteadiness. He responded to this in a reasonable manner by reaching out to the nearby balustrade to steady himself. In my view, none of those actions bespeak a failure on the part of the plaintiff to take care for his own safety.
As to (b) - alleged failure to secure a proper foothold
In my view the evidence does not support the assertion that the plaintiff had failed to maintain a proper foothold. From the viewpoint of evaluating an allegation of contributory negligence, I find that the plaintiff cannot be reasonably criticised for allegedly failing to keep a proper foothold when he needed to stand on a level surface and to weight bear on his right leg at the time when he was experiencing a cramp, from which he needed relief.
It was the cramp that caused the plaintiff to experience unsteadiness. It cannot be reasonably said that this was something he could and should have taken precautions against, having regard to the suddenness of the onset of that cramp, and the immediacy of his need to respond. It was not as if the area where he had placed his foot was a causative factor, such as a hazard, or an obstacle, or on an uneven surface.
As to (c) - alleged inability to support himself
In my view, the allegation of a failure on the part of the plaintiff to support himself is not sustainable in the context of an evaluation of whether or not the defence of contributory negligence has been established.
Until the plaintiff rose from the sitting position he had no indication that he would be unable to support himself whilst standing. When he did stand, his right leg caused him difficulty, and it gave way. He then became unsteady, and he acted reasonably and promptly by seeking out a handhold on the balustrade in order to steady himself.
In my view, the context, sequence and rapidity of those events, cannot reasonably sustain the assertion of contributory negligence on the part of the plaintiff.
Conclusion on alleged contributory negligence defence
For the reasons outlined above, I find that the defendants have failed to make good any aspect of the claimed defence of alleged contributory negligence.
Disposition
As the plaintiff has succeeded in the litigation he is entitled to a verdict and judgment in his favour against the defendants in the agreed sum of $425,000.
Costs
The plaintiff is entitled to have his costs of the proceedings paid by the defendants on the ordinary basis unless a party can show an entitlement to some other costs order.
Orders
I make the following orders:
(1) Verdict and judgment for the plaintiff in the agreed sum of $425,000;
(2) The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
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Decision last updated: 09 October 2014
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