Bader v Jelic

Court of Appeal (NSW)|2011-08-03|Before: Macfarlan JA, Young JA, MacFarlan JA

Judgment 1MACFARLAN JA : In early 2005 the respondent, Mr Steven Jelic, was a telecommunications mechanic. On 1 March 2005 he attended the home unit of the appellants, Mr Edward Bader and Mrs Gerardina Bader, in Balmoral, Sydney to undertake some work. After Mr Bader escorted him to the upper floor of the unit, Mr Jelic returned downstairs to retrieve something from his vehicle. On the way he slipped or tripped near the front door and stumbled into and broke a large plate glass window next to the door, suffering serious injuries. 2In February 2008 Mr Jelic commenced proceedings in the District Court against Mr and Mrs Bader claiming damages from them on the basis that as the occupiers of the unit they owed him a duty of care which they breached, leading to his accident and consequent injuries. 3The proceedings were heard by Cogswell DCJ on 1 and 2 June 2010. In his judgment of 2 July 2010 his Honour upheld Mr Jelic's claim and awarded him damages in the amount of $243,250. Mr and Mrs Bader have appealed against that judgment claiming that his Honour erred in his findings as to the duty of care that the appellants owed to Mr Jelic, breach of that duty and causation of Mr Jelic's accident. The appellants do not challenge his Honour's quantification of damages.

THE JUDGMENT AT FIRST INSTANCE 10The primary judge noted that Dr Leon Jacob, an expert in glass technology whose report the appellants tendered, gave evidence that as the unit was apparently constructed in 1968 there was no legal requirement operative at the date of the accident for the window in question to be made of safety glass (Judgment [15]). Requirements that came into force after the unit was built in respect of new properties and glass installations did not require intact existing glass to be replaced with safety glass. An aspect of those new requirements was that subsequently installed full length glass was required to be marked in such a way as to give notice of its presence. These matters were not in dispute in the proceedings. 11The primary judge also said that he accepted the following observations of Mr Neil Adams, a safety management and ergonomics consultant whose report Mr Jelic tendered: " ... Mr Adams thought, from the point of view of perceptual ergonomics, that as the plaintiff walked towards the general area where he knew the entrance was the clear unmarked full length glass could very easily have been perceived as an unobstructed opening. Mr Adams observed that such openings have, for many years, been required to be marked. Mr Adams observed further that it is common knowledge and common experience that floors that are surfaced with smooth tiles can be slippery and the rugs on such surfaces can slip quite readily. In addition, bunching rugs can be trip hazards and clear glass panels can be mistaken for openings" (Judgment [17]). 12I note in relation to Mr Adams' observation concerning his experience of the marking of full length glass that he was not suggesting that the subject window was required by law to be marked but was indicating that "for many years" new installations had been marked where requirements for that to occur existed. 13Having referred to a report of Dr Thomas Gibson, a biomechanical engineer, indicating that he had conducted some experiments and concluded that rotation of a foot on a rug such as that in question might produce some "small bunching", the primary judge said the following: " ... The accident, according to Mr Jelic, involved a stumble. The most likely source of the stumble, it seems to me, was what the plaintiff observed as wrinkling or bunching. That source is consistent with Dr Gibson's experiment of him rotating his foot, producing a bunching" (Judgment [25]). 14The primary judge stated his conclusions in relation to the appellants' liability as follows: "34 I am satisfied on the balance of probabilities that Mr Jelic has proved that his accident was the result of the Baders' negligence. These are my reasons. It was in my opinion reasonably foreseeable that the large glass panel could be mistaken for a door. Mr Jelic was not a social visitor but a first time visitor who was engaged in his employment at a site which was completely unfamiliar. There were three panels. As I have said, one was the main door, one was the window in question and a third was a glass sliding door. The stairs delivered Mr Jelic into the downstairs room towards the direction of the middle of those three panels. 35 It was not a leisurely social visit that Mr Jelic was involved in. Social visitors might be more measured in their pace and might be engaged in admiring the home, the furniture and the courtyard. 36 The floor surface comprised ceramic tiles with rugs. Mr Bader regarded it as appropriate to place adhesive material underneath to prevent them moving. It had been there for many years. It did not cover the whole of the underneath surface of the rugs. 37 What was in my opinion reasonably foreseeable and far from fanciful was that a focused business visitor might mistake the middle panel for a door. Mr Jelic was not a social visitor but a man with a mission. He had a business task to perform. What was reasonably foreseeable was an accident of some sort arising from a combination of factors. One was an unstable floor surface caused by part of the mat not having adhesive material beneath it. That could produce a fall, an injury. The fall could occur near the glass panel and might pitch the person towards the panel. Even if there was no fall involved there was a risk that a non-social focused visitor might mistake the middle panel for a door. Such accidents are known to happen as evidenced by the markings seen on such doors, like the one which replaced the broken panel and which is now a requirement of law. ... 41 The standard of care of course is, as Buss J described at [36] [of Homestyle Pty Ltd v Perrozzi (2007) 33 WAR 209] 'what a reasonable person in the position of the occupier, would in the circumstances, do by way of a response to the foreseeable risk'. To my mind, I am satisfied that in this case some of the measures which Mr [Neil Adams] referred to such as warning Mr Jelic about the rugs downstairs and about the presence of the fixed plate glass window could have been taken by Mr Bader. More significantly though, the middle plate glass window could have been affixed by Mr Bader or by the Baders with some form of visual identification to distinguish it from a door. It was not, in my opinion, a remote or a fanciful risk and the Baders, although they had taken some steps towards securing the rugs, remained negligent in failing to take the steps which I have just described. Even if Mr Jelic was to some extent not paying attention, a matter to which I will return, the Baders still owed him a duty of care in the circumstances because of the nature of the reason that he was there that involved him being in business and being focused on his task."

The appellants' submissions 15The appellants first complained that the primary judge gave no consideration to the Civil Liability Act 2002 (the " CL Act ") and in particular had no regard to the factors identified in s 5B(1)(b), s 5B(1)(c), s 5B(2)(a) and s 5B(2)(c). Section 5B CL Act is in the following terms: " 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." 16The appellants' principal further submissions were as follows: The primary judge should have attached, but did not attach, significance to Mr Bader's evidence that the premises had been in use with rugs in place for 10 years (five years before the accident and five years after) without any other accident having occurred. There was no evidence that it was common practice to place a "visual identification" on old windows such as that into which Mr Jelic stumbled. There was no proper basis in the evidence for the primary judge's apparent conclusion that the rug in question was insufficiently secured to the floor. A warning to Mr Jelic was not required because such risk as there was was an obvious risk ( CL Act , s 5F, s 5G and s 5H). Mr Jelic had not demonstrated that his accident was caused by any negligence on the part of the appellants.

Mr Jelic's submissions 17Mr Jelic's written submissions on appeal included the following: "An important part of the trial judge's reasoning is the absence of visual cues which would lead an entrant to the conclusion that there was a glass panel in front of him. There were no blinds or curtains obviously partly obscuring the panel of glass, there were no pot plants or similar objects (contrary to the later photographs) which would suggest that the panel was not an opening. All of the visual cues were likely to lead an entrant to a position where the layout of the premises 'funnelled' him toward the glass panel and gave him the impression that an open doorway was involved. This is particularly so in circumstances where the entrance doorway appeared somewhat like a feature panel rather than a doorway and the glass panel complained of appeared very much like the entrance to the premises" ([25]). 18Mr Jelic submitted the following in relation to the glass that constituted the window in question: "It was common ground at the hearing that for the reasons given by Dr [Jacob's report] safety glass was not a legal requirement. That report confirmed however, that over many years it had been common for reputable firms to replace glass doors and side panels with safety glass. If evidence of common practice is needed it was supplied by the report of Dr Jacobs (sic) as to the requirements of safety glass and the report of Mr Adams as to safety glass and decals" (Written Submissions [40]). 19As to causation, Mr Jelic submitted that "[i]f there had been sufficient visual identification on the glass he obviously could have changed direction more slowly and the accident would have been avoided" (Written Submissions [53]). 20Ms Norton SC, senior counsel for Mr Jelic, referred in her oral submissions to the following part of Mr Jelic's then counsel's address at the hearing at first instance: "[I] point out to your Honour that I'm not running a case that there should have been installed by the defendant, decals or some sort of decoration on the panel to make it apparent. I am saying though that a simple measure, knowing that there's a glass panel there which anyone could mistake for an open doorway, would be to draw the curtains across it or lower the blinds. Your Honour would accept, as I've said before, that the curtains or blinds were there because of the failure to call the cleaners and Mr Bader doesn't know, no invoices have [been tendered] to show anything was acquired afterwards" (Transcript 2/6/2010 p 51). 21Ms Norton accepted that in these circumstances the primary judge's conclusions that "the middle plate glass window could have been affixed by Mr Bader or by the Baders with some form of visual identification to distinguish it from a door" (Judgment [41] quoted in [14] above, emphasis added) went beyond the case that Mr Jelic had advanced in that the word "affixed" indicated that his Honour was referring to the attachment to the window of a decal or some such marker, rather than the drawing of curtains or the lowering of a blind (Appeal Transcript p 34). 22Ms Norton further accepted that a fair summary of Mr Jelic's case was as follows: The plate glass window constituted a hazard. The blind that was installed should have been lowered to make it obvious that the window was not an open door. If this step had been taken Mr Jelic would have noticed the window earlier and would not have had to rotate his foot in the way that he did, with the consequence that he would not have stumbled and his injury would have been avoided (Appeal Transcript pp 37 - 38).

The criticisms of the judgment at first instance 23The appellants' submission that the primary judge did not give proper consideration to the CL Act is well-founded. Although the Act governed the proceedings before him, his Honour did not mention it other than by way of postscript and in doing so only mentioned s 5D (concerned with causation) and s 5E (concerned with onus of proof) (see Judgment [83]). 24Whilst it is not strictly necessary for a judge to mention the provisions of the CL Act if the judge nevertheless addresses the requirements of that Act (see Laresu Pty Ltd v Clark [2010] NSWCA 180; (2010) Aust Torts Reports [82-068] at [41] - [42]), it is highly desirable that express reference be made to the provisions of the CL Act . Doing this should ensure that the judge properly addresses the matters that the CL Act requires to be addressed and does so in a fashion that facilitates the parties' understanding of the judgment and an appellate court's disposition of an appeal from the judgment. 25In the present case it is arguable that the primary judge at some point addressed most of the required elements but in my view his Honour did not do so in a satisfactory fashion. For example, the primary judge expressed at [41] the view that the relevant risk was not "a remote or a fanciful risk", which probably satisfies the requirement of s 5B(1)(b) that the risk be "not insignificant" but his Honour did not (at least explicitly) assess "the probability that the harm would occur if care were not taken", that being the factor stated in s 5B(2)(a). Nor did his Honour (at least explicitly) consider the factor stated in s 5B(2)(b), that is, "the likely seriousness of the harm". 26Having identified a foreseeable risk, although not having assessed the probability of the risk coming to pass or the likely seriousness of any harm that might follow, the primary judge appeared to assume that a reasonable person in the position of the appellants would have responded in some way to that risk. His Honour said that he was satisfied that " some of the measures" to which Mr Adams referred " could have been taken by Mr Bader" (Judgment [41], emphasis added). Such language does not suggest that his Honour addressed the question to which s 5B directs attention: whether a reasonable person in the position of the appellants would have taken precautions in response to the identified risk. 27A further difficulty is that, as noted above (see [21]), one of his Honour's principal findings differed from the case that was put to him. This finding related to the affixing of some form of visual identification to the window in question. It is apparent from Judgment [41] that the primary judge regarded this as a significant matter. However Mr Jelic had not contended that this step should have been taken (see [20] above). 28As a result of these errors the primary judge's conclusions cannot stand. It is necessary for this Court to reconsider Mr Jelic's claim. There were some conflicts in the oral evidence that the primary judge did not resolve, for example, as to whether the front door was open at the time of the accident, whether Mr Jelic was carrying anything at the time of the accident and whether the rug observed by the experts on their site inspection some years after the accident was the rug in place at the date of the accident. However resolution of these issues (necessarily involving the formation of views as to the credit of witnesses) does not appear to me to be essential for the purpose of this Court reconsidering and determining Mr Jelic's claim. As neither party contended that this Court should remit the proceedings for redetermination in the District Court, I proceed to express my views as to the merits of Mr Jelic's claim. 29Before doing so, I add the following in relation to the primary judge's repeated references to Mr Jelic not being a social visitor to the appellants' unit (see Judgment [34], [35], [37] and [41] quoted in [14] above). If, as I think was probably the case, his Honour was intending simply to indicate that a person, such as Mr Jelic, who was unfamiliar with the unit and may have moved briskly when inside it, was within the class of persons who ought to have been in the appellants' contemplation, his Honour's observations are unexceptional. To the extent that they may have been intended to indicate that the capacity in which Mr Jelic attended the unit had some greater significance, I do not agree with them.

Reconsideration of Mr Jelic's claim 30It was conceded at first instance and on appeal that the risk of an accident such as occurred was foreseeable and it was not argued on appeal that the risk was insignificant ( CL Act , s 5B(1)(a) and s 5B(1)(b)). 31As noted earlier, Mr Jelic contended that a reasonable person in the position of the appellants would have taken the precaution of lowering the blind to ensure that the window was not mistaken for the front door (see [20] above). During argument on the appeal there was an issue between the parties as to whether a blind capable of covering the window was in place at the date of the accident in March 2005. Subsequent to the hearing the parties agreed that such a blind is shown in a photograph that is in evidence taken in August 2005. In the absence of any evidence that this blind was installed between March and August 2005, I proceed upon the basis that it was there on the date of the accident. Mr Jelic's contention also referred to the alternative of drawing curtains but, consistently with the arguments put on appeal, it is sufficient to consider whether a reasonable person would have drawn down the blind. 32In assessing whether a reasonable person in the appellants' position would have taken the precaution referred to it is necessary to consider the factors identified in the CL Act , s 5B(2). 33As to s 5B(2)(a), that is, "the probability that the harm would occur if care were not taken", it is of significance that, according to Mr Bader's evidence, no accident had occurred in the five years prior to Mr Jelic's accident. As a finding has not been made that the rug upon which Mr Jelic stumbled remained in place after the accident, I do not however have regard to the subsequent lack of accidents of which Mr Bader gave evidence. 34As pointed out in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, "the weight that will attach to an accident-free history involves a question of fact to be determined in the light of all the relevant circumstances" (at 309). In my view the accident-free history of five years preceding Mr Jelic's accident is of some significance in assessing whether a reasonable person in the position of the appellants would (at the date of Mr Jelic's accident) have regarded it as necessary to have the blind pulled down over the window. 35Mr Jelic argued that no weight should be given to Mr Bader's evidence of the lack of accidents as Mr Bader worked extremely hard and was rarely at home. This point is of some relevance but does not in my view deprive Mr Bader's evidence of all weight as it would be surprising if he, as one of the owners and occupiers of the premises, was not aware of an accident having occurred, even if it occurred in his absence. The parties agreed at first instance that as Mrs Bader was ill at the time of the hearing no adverse inference should be drawn from the fact that she was not called to give evidence. 36Mr Bader's evidence concerning the adhesive material under the rug is also of relevance to the application of s 5B(2)(a) to the present case. Mr Bader gave evidence that when, at a previous home, he first laid rugs that included the rug upon which Mr Jelic stumbled, he noticed that "they used to move" (Transcript 1/6/2010 p 34). As a result he placed the "sticky cotton" material under the rugs to stop them moving. That material was also used when the appellants moved in to the subject premises in 2000. When asked in his evidence-in-chief "Did you notice anything about the rugs on the floor in the new premises on the tiled surface in terms of their movement?", Mr Bader replied "No, they didn't move at all" (ibid pp 35 - 36). Ms Norton directed the Court in this context to Mr Bader having been asked in cross-examination "[the] rugs didn't stay in place on the carpet underneath them, did they?" to which Mr Bader responded "[u]nless you didn't walk on it, yeah" (ibid p 58). However this question and answer related to the appellant's previous home and the situation prior to the adhesive material being placed under the rugs. Although Mr Bader accepted that the adhesive material did not cover the full under-side of the relevant rug (ibid p 63) it was not put to him in any clear fashion that the edges of the rug were unstable, nor did he say that to be the case. 37Taking these considerations into account, I conclude that a reasonable person in the position of the appellants would have regarded the risk of a serious accident occurring as low. 38In considering "the likely seriousness of the harm" for the purposes of s 5B(2)(b) it is necessary to have regard to the fact that the window in question was not made of safety glass with the consequence that if someone stumbled on the rug in the vicinity of it the person might fall into the window, break it and suffer serious harm. However there is no evidence that the appellants were aware that the window was not made of safety glass and Ms Norton conceded, I consider correctly, that it could not be concluded that a reasonable person in the position of the appellants would necessarily have known that the glass was not safety glass (Appeal Transcript p 26). In these circumstances I think it is necessary to proceed upon the basis that it would not have been obvious to a reasonable person that there was a real prospect that if a person fell on to the window it would shatter, resulting (as occurred here) in severe lacerations to the person. As a result, it should be concluded for the purposes of s 5B(2)(b) CL Act that a reasonable person would not necessarily have foreseen that if an accident occurred the injuries suffered would be likely to be of a high level of seriousness. 39As to s 5B(2)(c) CL Act , "the burden of taking precautions to avoid the risk of harm" was not great as it simply involved pulling down a blind. 40As to s 5B(2)(d) CL Act , it can be said that there was some "social utility of the activity that creates the risk of harm" as having the window, and the view beyond, unobscured by a blind would no doubt usually be preferable from an aesthetic point of view to a cloaking of the window. 41I consider that a cautious and observant home owner might have identified a significant risk resulting from the following: A person descending the stairs was more or less heading towards the large plate glass window. The window did not have any visual cues on it or behind it (such as pot plants) to ensure that it was not mistaken for the front door. To exit through the front door the person who had descended the stairs needed to veer to the left, traversing the edge of the rug upon which Mr Jelic stumbled. Because the adhesive material under the rug did not extend to its edges, there was a prospect that the edges of the rug might be unstable on the tiled floor. The window in question was not made of safety glass, with the consequence that a person falling into it might break it and suffer very severe injuries in doing so. 42However I do not consider that a reasonable person in the position of the appellants would necessarily have appreciated all of these matters and put them together to reach the conclusion that the blind should be pulled down to avoid persons such as Mr Jelic having an accident. 43The following oft-quoted observations that Gleeson CJ made in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 are pertinent to the present case: "There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense" (at [23]). 44Accordingly my view is that Mr Jelic did not establish that a reasonable person in the position of the appellants would, for the purpose of ensuring that the relevant window was not mistaken for the front door, have pulled the blind down over the window. A reasonable person might have done this, or (which was not part of Mr Jelic's case in the proceedings) have taken other steps to reduce the risk of an accident such as placing decals on the window or fixing the edges of the rug with adhesive material but I do not consider that it can be concluded that a reasonable person would have pulled down the blind for that purpose. 45In light of my conclusion that the appellants have not been shown to have been in breach of duty, it is unnecessary to reach a final view about the question of causation. However I am inclined to the view that Mr Jelic did not establish this element of his claim either. It was necessary for him to persuade the Court that if the blind had been pulled down he would not have stumbled on the rug and fallen. For that to have been the case, the Court would have had to have been satisfied that the reason he stumbled was that he made a late left turn towards the door that he would not have made if the blind being pulled down caused him to realise earlier that the front door was somewhat to the left and not at the place where the window was. 46Whilst it can be inferred that Mr Jelic would have turned earlier if the blind had been pulled down to identify the window as a window, determination of whether he would have avoided stumbling depends upon an assessment of how fast he was walking and the degree of instability of the floor coverings. I am not affirmatively satisfied that Mr Jelic would not have stumbled if the blind had been down as it seems to me that it would simply be speculation to conclude that he would not.

ORDERS 47For the reasons I have given I propose the following orders: (1) Appeal allowed. (2) Judgment entered and orders made at first instance set aside. (3) Judgment in the proceedings for the appellants. (4) Order the respondent to pay the costs of the appellants of the proceedings at first instance and on appeal. (5) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified. 48YOUNG JA : I agree with Macfarlan JA. 49SACKVILLE AJA : I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2011

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