Williams v Hobart Public Hospitals Board

[1987] TASSC 77

Serial No B7/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Williams v Hobart Public Hospitals Board [1987] TASSC 77; B7/1987

PARTIES:  WILLIAMS
  v
  HOBART PUBLIC HOSPITALS BOARD

FILE NO/S:  389//1985
DELIVERED ON:  24 March 1987
JUDGMENT OF:  Cox J

Judgment Number:  B7/1985
Number of paragraphs:  11

Serial No B 7/1987
List "B"
File No 389/1985

WILLIAMS v HOBART PUBLIC HLOSPITALS BOARD

REASONS FOR JUDGMENT  COX J

24 March 1987

Before publishing the attached reasons for judgment Cox J. said:–

Since writing the reasons for judgment I am about to publish my attention has been drawn to a decision of the High Court of 10th March 1987, Australian Safeway Stores Pty. Ltd. v. Zaluzna, where in a joint judgment of Mason, Wilson, Deane and Dawson JJ. their Honours repeat with approval the following statement of Deane J. in Hackshaw v. Shaw (1984) 155 C.L.R. 614:

“.... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff‘s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

In determining in the instant case whether negligence has been established I have not sought to determine whether any special duty qua occupier was owed by the defendant to the plaintiff and whether, in determining that duty, the plaintiff had the status of invitee, trespasser or otherwise. I have endeavoured to determine whether, in all the known circumstances, any real risk of injury to a person parking his car where he did on the defendant’s premises was reasonably foreseeable by the defendant and whether in discharging the ordinary duty of care lying upon it the defendant made the sort of response to any foreseeable risk which an ordinary person would take.

Serial No B7/1987
List "B"
File No 389/1985

WILLIAMS v HOBART PUBLIC HLOSPITALS BOARD

REASONS FOR JUDGMENT  COX J

24 March 1987

1. The plaintiff sues the defendant in negligence for the cost of repairing his car which was damaged when struck by falling glass from a window of the Queen Alexandra Wing of the defendant‘s hospital. At the time the car was parked in an area on the defendant’s premises which was clearly marked with a sign saying “All parking spaces reserved for medical staff. Private vehicles prohibited.”

1. On the day in question (the 24 November 1984) the plaintiff was driven in his own car by his cousin to the casualty section of the hospital for attention to a cut hand. Having let the plaintiff off, the cousin had then proceeded to park the car in the area I have mentioned. It was an internal area overlooked by the eastern elevation of the Queen Alexandra Wing which, I take judicial notice, was a new building which had been constructed some few years previously. The cousin then went to a hotel to meet friends and the plaintiff, while still in the casualty section, heard over the public address system a request for the owner of the car, which in fact belonged to him, to contact reception. On doing so he learnt that the car had sustained damage due to falling glass.

1. Documents tendered indicated that on the 15 December 1980, 15 January 1981, the 21 January 1981 and the 17 February 1981 there had been glazing failures on the new wing. On the first occasion a section of the external glazing on the south elevation on Collins Street at the lower ground floor level was seen to be bulging out. It eventually shattered and fell onto the lawn and no injuries were caused. The defendant‘s Administrator reported the incident to the Director General of Health Services by letter of the 15 January 1981. The second failure was reported the same day. In that case a pane of glass on the fourth floor, also on the south elevation, had shattered but had not disintegrated. Barriers had been erected to protect the passing public. The third failure was reported on the 22 January 1981. Glass fell on the parking area ramp and into Collins Street. The failed panel was from the top row of the south east corner of the east elevation. Barricades and danger notices were erected. The fourth failure occurred on the 17 February 1981 and was reported to the Director General the same day. A spandrel panel of glazing on the east elevation failed on the fifth floor level. The Administrator reported that the appropriate Department of Housing and Construction officers were notified and action was taken by them to tape up and attempt to remove the shattered glazing in one piece for analysis.

1. On the 25 February 1981 an officer of the C.S.I.R.O. Division of Building Research wrote to the Director General, Department of Housing and Construction, advising:–

“. . . . . we received the failed glass sample and by tracing back along the radial lines of the cracked Vari–tran glass were able to identify the initiation dice, i.e. the two dice between which the failure initiated. On extracting these and examining the fracture face between we identified a sphere of nickel sulphide impurity in the glass near the central plane of the glass, and measuring about 0.04 mm in diameter. It was this which had caused the failure.

................................................

The phenomenon is well known in the glass industry, and these days manufacturers generally try to avoid sending out toughened glass containing nickel sulphide stones by subjecting the product to a ’heat soak‘, i.e. holding the toughened glass at a high temperature for sufficient time to allow inversion from alpha nickel sulphide to beta nickel sulphide. This treatment results in failure of nearly all panels containing nickel sulphide in the tension layer. It would be interesting to ascertain if Libby Owen Ford gave your glass a ’heat soak‘. They possibly did, in which case I would expect the total number of failures that are going to occur to be relatively small. That this may be so is possibly indicated by the long time that elapsed from glazing to first failure, and by the very small size of the stone detected in the present failure (about one–fifth of the average diameter in other cases).

The black paint on the back of the glass and the glue holding the glass fibre will tend to hold the glass together after failure. I would recommend taping of failures with clear tape as soon as they are observed, to prevent fall out by wind forces. Replacement can then be made as convenient. Clear tape will make it easier to identify initiation dice.

It will be important to keep a record of the date of each failure – this can give a guide to how many more failures may occur. What are the dates of the first four failures?”

1. A further document (P2) which records the dates of the glazing failures also records that on (or by) the 7 May 1981 additional protective screens were in position.

1. A memorandum from the defendant’s Services‘ Engineer to the Administrator of the 1 July 1981 records in part:–

“The drawing SK40 has been perused and it would appear that it is proposed to erect a scaffold at ground level, and between the horizontal members of this scaffold to affix a Sarlon Awning, with the fixings at 450mm centres.

The Department of Housing and Construction have sought agreement from the Department of Labour and Industry and from the Town Clerk’s Office.

The proposal is for the protective awning to be in position for a period of 18 months after the last glazing failure, and then it would be removed and the area made good.

Morally I feel that we must take action to prevent patients, staff and passers–by from being injured from falling glass, if in fact any more glass does fall.

From the City of Adelaide report it would appear that the glazed areas should be viewed at least twice daily, and action taken to remove the failed glazing as soon as possible after the imminent failure is observed.”

1. No further incidents having occurred in the interim, the protective screens were removed with the approval of the Department of Labour and Industry and the Department of Health Services on or by the 25 August 1982, that is about 18 months after the last failure.

1. The next incident occurred on the 5 May 1983. This was not a glazing failure of the same kind, but one due to extremely heavy wind. A panel of glass on the north face was blown in or sucked out. The matter was not reported to the Department of Health Services or to the Department of Labour and Industry.

1. On the 9 April 1984 there was a further glazing failure on the south elevation. The glass however was still in tact and arrangements were made by Department of Construction officers to remove the failed glazing. Prior to its removal prompt arrangements had been made to barricade the area to prevent workers or pedestrians approaching the area where glass might fall.

1. On the 10 September 1984 the glass which had been put in on the north face to replace that which had been wind damaged on the 5 May 1983 (that is, 16 months earlier) failed. It had shattered and fallen out. It was accepted by the Administrator in his report to the Director General of the same date that the failure was not due to abnormal winds and a recommendation was made that “the cause of continuing glazing failure should be referred to the Department of Construction for further investigation and recommendation”.

1. On the 5 October 1984 the Director of Construction wrote to the Director General of Health Services and referred to the C.S.I.R.O. report I have mentioned. He said:–

“This report accepted that in spite of the testing of the Vari Tran toughened glass by the manufacturer before shipment a small impurity might remain undetected before installation on site. This fault could occur several years after installation but it was accepted that the longer the glazing was in position there was less chance of failure taking place.

The glass replacement in the failed pane referred to above, had only been in position for fifteen months and there was no abnormal weather conditions at the time of failure. An impurity in the pane can only be speculation but could be the cause of this particular failure.”

No suggestion was made for security precautions to be re–introduced.

1. Finally the glass fell from the east elevation of the wing onto the plaintiff‘s car on the 24 November 1984. That glass, it would seem, had been in position since the time of the first failures nearly four years before. The defendant thereupon re–instated its security measures and a notice was given to all staff in the following terms:–

“ROYAL HOBART HOSPITAL

26 November, 1984

NOTICE TO ALL STAFF

Glazing Failures Queen Alexandra Division

Unfortunately there have been two further failures in the glazing of the abovementioned building over the past 2 months. The latest failure of Saturday last resulted in a vehicle being struck by falling glass.

It is therefore necessary to re–introduce the security procedures which existed for some 18 months shortly after the building was first opened. These include:

(a)     no access to several car parks adjacent to the rear of the building.

(b)     access to the pathway along the Argyle Street face of the building will be blocked off.

(c)     the lawn area fronting Collins Street will be fenced.

(d)     a temporary awning will be erected near the steps leading to the front door of the building.

Further investigations are proceeding as to the cause of the glass failures and the above restrictions will remain in force until the outcome of these investigations are known.

Staff are requested in the interests of safety to co–operate in observing the restrictions which of necessity have had to be introduced.

W. Flassman
  ADMINISTRATOR”

1. On the documentary material to which I have referred I am asked to decide whether the plaintiff has established negligence on the part of the defendant.

1. I would first observe that if a reasonable man in the defendant’s position would have foreseen that there was a risk of injury to passers by, including the plaintiff, then the desirable response would have been to take precautions against the fall of glass of the same age since installation as the panel complained of from all sections of the building. There was no reason to suppose that that particular section presented any greater risk than any other, or that any localised precaution could or should have been taken in respect of it. Initially such precautions were taken with a protective awning which apparently required and received the agreement of the Department of Labour and Industry and the City Council. In addition twice daily visual inspections were contemplated. There was no evidence that such inspections were ever discontinued and no complaint is made in the pleadings of any failure to inspect. The awnings were removed after a period of 18 months from the last failure as the Services‘ Engineer had indicated would be done in his memorandum to the Administrator on the 1 July 1981. This was done, so the documentation reveals, with the approval of Department of Labour and Industry and Department of Health Services. The C.S.I.R.O. report had not expressed any opinion as to how long the glazing might present a risk. On the evidence presented I am positively persuaded that there was no negligence on the part of the defendant in removing the protective awnings when they were removed. By that stage there was no reason on the evidence for supposing that there was any likelihood of a further failure which would result in the fall of glass.

1. The next incident on the 5 May 1983 did not result from a failure of the glass, but from wind damage. While this necessitated the installation of fresh glass of much later vintage than the original glass and while because of its newness it might in the early part of its life require localised protection there was no reason to suppose a likelihood of failure on any other part of the glazing and no basis for a finding of negligence from the defendant’s failure to take further general precautions. The risk was no different to what it had been when the awnings were first removed. Likewise when that panel failed on the 10 September 1984 in its sixteenth month after installation this failure did not of itself suggest any difference in the level of risk associated with the original glazing which was now at least approaching four years in age and was probably older still for the C.S.I.R.O. report spoke of the “long time” which had elapsed between glazing and the first failure in December 1980.

1. The only other incident which occurred was that on the 9 April 1984 when a section of glazing had failed on the south elevation but was still intact. Immediate barricading was arranged to prevent damage until the glass was removed, but there is no evidence of any fall out of glass. Should this have alerted the defendant to the possibility further glass panels might fail and expose passers by to the risk of injury? Should it and the later failure of “new” glass on the 10 September 1984, in combination, have alerted the defendant to that risk? On the material before me I am not persuaded that either or both such incidents, in the light of the general history I have recounted, should have alerted a reasonable man to such a risk.

1. Even were that the case, the further question arises what would a reasonable man do by way of response to the risk? Mason J. in Wyon Shire Council v. Shirt (1980) 146 C.L.R. 40 at p.47 said:–

“The perception of the reasonable man‘s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

The lack of material on the nature of the fault, and the degree of probability of its occurrence, both of which are no doubt matters which could be the subject of expert evidence, prevents me from assessing with any confidence the probability of glass falling out at that time or place. Further, I have virtually no evidence relating to the expense, difficulty or inconvenience of taking remedial action. How long it took or how difficult it was to implement the Notice of the 26th November has not been the subject of evidence, nor do I know how long it was before the glazing problem was finally overcome, if indeed it ever was, or how that was achieved.

1. In my opinion the plaintiff has failed to establish negligence on the part of the defendant. I find it unnecessary therefore to consider whether the act of the plaintiff‘s agent in parking his car in a position which was clearly a suitable position for parking a car, but which the defendant had prohibited all but medical staff from using for that purpose, places the plaintiff in the position of being a trespasser. There will be judgment for the defendant.