Baker v Gilbert & 2 Ors

Baker v Gilbert & 2 Ors - [2003] NSWCA 113 - NSWCA 2003 case summary — Zoe

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Friday 23 May 2003 ANDREW BAKER v KAREN GILBERT & 2 ORS Judgment 1 HODGSON JA: I agree with Ipp JA. 2 IPP JA: On 23 November 1997 the first respondent, Ms Gilbert, was seriously injured when she landed awkwardly after jumping off a plastic ladder. The ladder provided access to and egress from an above ground swimming pool at the premises of the appellant, Mr Baker. Ms Gilbert sued Mr Baker in the District Court for damages arising out of the injuries she sustained. 3 The ladder, which was more than one metre high, was in the shape of an inverted V with a small footplate or platform forming the apex of the V. The footplate was about 45 cm wide by about 25 cm across. Each arm of the ladder was joined to the footplate. The ladder straddled the wall of the pool. One arm of the ladder led into the pool and the other to the area outside it. The footplate rested on the top of the coaming of the wall enclosing the pool. The footplate was fastened to the coaming by two steel bolts that passed though it and the coaming. Each bolt was fixed in place by a nut, which was attached underneath the coaming to the bolt. A washer or spacer was inserted on each bolt above the nut and below the coaming. 4 Ms Gilbert had been swimming in the pool with Mr Baker's permission. After she had swum for some time she decided to leave the pool. To do this, she first climbed up the ladder, which led from the pool to the footplate on the top of the coaming. She did so with her face to the pool wall. When she reached the footplate, she decided, understandably, to turn around so that she could descend by again facing the pool wall. Ms Gilbert is a large woman, weighing at the time about 122 kgs. This meant that it was not easy for her to turn on the footplate, which was a relatively small area. She took a number of small steps while she tried to manoeuvre herself around. She said that the plate became "wobbly". She started to fall outwards towards the ground and then jumped. She landed on her feet but, as I have said, suffered serious injuries. 5 Ms Gilbert alleged on various grounds that Mr Baker was negligent. Principally, she asserted that he had failed to inspect and maintain the ladder adequately. 6 Garling DCJ upheld Ms Gilbert's claim and awarded her damages. Mr Baker appeals on the ground that Garling DCJ wrongly held that he was in breach of the duty of care he owed Ms Gilbert. There were several grounds of appeal but they fall into two categories, namely:

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He said that if one "put one foot on the edge of that plate …. you would feel extremely unsafe". 20 There would always be a degree of instability in the footplate as the coaming, on which the footplate rested, was flexible. However, the evidence was to the effect that insufficiently tightened bolts would give rise to dangerously greater instability. 21 After the accident, Mr Baker reassembled the ladder and reinstalled the footplate. It was found then to be relatively stable. There was evidence that the ladders had been in use for many years, in many pools, without complaint. The inference is that when properly assembled and maintained, the footplate would indeed be relatively stable. But it is plain from the evidence of Ms Gilbert and Mr Ferrier, as accepted by his Honour, that at the time of the accident the footplate was dangerously unstable. 22 There was no evidence of any design fault that would have caused instability to the extent described by Ms Gilbert and Mr Ferrier. What then is the explanation for the increased degree of instability at the time of the accident? Garling DCJ concluded that the explanation was the insufficiently tightened bolts. In my opinion, the evidence of Mr Ferrier gave direct support to this conclusion, which was consistent with the evidence of Ms Gilbert and the expert testimony to which I have referred. 23 Mr Donaldson submitted that Garling DCJ took no account of the evidence of the presence of the washer between the nut and the coaming. It was argued that Mr Ferrier's testimony that "there was more length of bolt" than was necessary should be discounted because he had felt the washer and not the bolt. But Mr Ferrier testified expressly that he had felt the bolt with his fingers, and it was not put to him in cross-examination that he had felt the washer, and not the bolt. In my view, this submission must be rejected. 24 In the circumstances, I would not uphold the first ground of appeal. 25 I now turn to what I have categorised as the second ground of appeal, namely, that Garling DCJ erred in finding that, in discharge of his duty of care as occupier of the premises, Mr Baker should have inspected or maintained the ladder and the footplate. 26 Mr Donaldson's main submission in this regard was that his Honour failed to apply what was said by this Court in Short v Barrett (unreported, NSWCA, 5 October 1990) and Stannus v Graham (1994) Aust Torts Reports 81-293. 27 In Short v Barrett, the plaintiff, a visitor to the house of a friend, fell off a timber deck balcony (and was injured) when a plank on the side of the balcony gave way. Meagher JA (with whom Clarke JA and Handley JA agreed) held that there was nothing to suggest to the defendant occupier of the premises that there was any defect in the balcony and said: "In my view, a householder in the position of [the defendant] is not acting unreasonably in take 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. Here there was no warning." 28 In Stannus v Graham, the plaintiff rented the defendant's premises as a holiday flat. She fell on a loose step on the premises and sued the defendant for damages for personal injury sustained as a result of the fall. In finding that the defendant was not to blame for the plaintiff's accident, Handley JA (with whom Meagher JA agreed) said at 61, 564: "This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects". 29 The paramount principles governing the liability of Mr Baker are those stated in the judgment of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662 to 663 and approved by the majority of the High Court in Australian Safeway Stores Pty Limited v Zaluzna (1986) 162 CLR 479 at 488. Deane J said at 663: "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 pre-requisite 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".

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While the significance of "proximity" has been questioned, the law is clear that the duty of care of an occupier arises in accordance with the ordinary principles of negligence and breach of that duty depends on what a reasonable person, in the circumstances, would do by way of response to the foreseeable risk 30 The observations in Short v Barrett and Stannus v Graham, to which I have referred, are merely guidelines to be applied in determining what a reasonable person, in the particular circumstances, would do in responding to the foreseeable risk (that being the basic test for liability in accordance with Hackshaw v Shaw and Australian Safeway Stores Pty Limited v Zaluzna). 31 In Short v Barrett, before finding that there was no negligence on the part of the occupier, Meagher JA was at pains to demonstrate that the balcony from which the plaintiff fell showed no obvious signs of weathering or cracking and there was nothing to indicate that the balcony could be unsafe. It is in this sense that the defendant in Short v Barrett received no warning that the balcony might be unsafe. A warning does not have to be express. It might be implied from the circumstances, for example, from patent signs of danger. 32 Thus, in Johnson v Johnson (unreported, NSWCA, 10 September 1991), another case where a visitor to a house fell from a balcony, the result differed from that in Short v Barrett. The reason for the difference was that in Johnson v Johnson there were indications of deterioration in the relevant part of the premises that should have alerted the defendant to dangers of the kind that eventuated. The Court held that the defendant ought to have been aware of the dangerous condition of the premises, and should have taken the necessary steps to remedy the situation. 33 In Stannus v Graham, Priestley JA said at 61, 562: "Mrs Graham and her husband said the step on which she fell was loose on the day she fell. There was no evidence that it had been loose before then. There was evidence from which it appeared it had not been loose before then. There was certainly no evidence that either Mrs Stannus or her caretaker knew or should have known the step was loose before the accident. Ordinary experience does not suggest the steps were of a kind needing special testing or inspection from time to time, or needed a handrail, nor was there any evidence to that effect".

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Handley JA at 61, 564 noted that there was no evidence that the step had moved before the accident or that the defendant knew of or had reason to suspect such movement. 34 Thus, while the Court in Stannus held that the defendant was not obliged to discover unsuspected defects that might be a source of danger to lawful entrants, it was careful to explain that on the facts there was nothing that could have led to a suspicion of danger arising. Nothing was said to suggest that, where circumstances give rise to a reasonable suspicion of danger to visitors from the condition of premises, the owner or occupier might, without being negligent, ignore that danger. It is apparent from the reasons of Handley JA that his observation as to the unwillingness of the Court to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects did not extend to circumstances where occupiers should reasonably suspect the existence of defects that might be dangerous to lawful visitors. 35 King v Stewart (1994) 85 LGERA 384 was yet another case where a guest fell from the balcony of a suburban home. Here, the plaintiff failed (although Kirby P noted that, "in some circumstances, a householder might be expected to check further for the safety of the premises"). Sheller JA (with whom Priestley JA agreed) pointed out that the defendant had kept the balcony rails under observation and had done work "as necessary" and "there was no indication of any instability or any insecurity". His Honour said, "[t]he bolts and brackets appeared to be holding firm. There was no indication of any looseness." There was no suggestion that work carried out on the balcony was in any way sub-standard, and there had been "absolutely no indication" to the defendant that the balcony needed attention. Accordingly, it was held that the plaintiff had failed to establish that the defendants were in breach of their duty to take reasonable care to avoid a foreseeable risk of injury. 36 Ordukaya v Hicks [2000] NSWCA 180 was another case involving an unstable step. In dismissing the appeal against the decision of the trial judge rejecting the plaintiff's claim, Sheller JA (with whom Mason P - on this issue - and Meagher JA agreed) said at para 44 that in the particular circumstances the defendant could not reasonably have foreseen a real risk of injury to the plaintiff. 37 In Stanton v Marino [2000] NSWCA 134, a visitor to the defendant's property fell while walking on an unstable rock. Giles JA (with whom Powell JA and Fitzgerald JA agreed) referred to Stannus v Graham and said: "The so-called principles in Stannus v Graham should not be construed and applied like the words of a statute. Although the defendants did not know of the defect in the means of access to the pump in the form of the loose rock, they could still have been in breach of their duty to take reasonable care to avoid a foreseeable risk of injury. If there was reason to regard the means of access …. as involving risk to someone in the position of the plaintiff, including risk from the use of the stone wall as a step even if there was no particular reason to suspect that the rock was loose, there could be breach of the duty of care in failing to remove the risk or at least warn of it".

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(g) The nuts that were attached to the bolts fixing the footplate to the coaming were rusted to a degree such that it was particularly difficult for Mr Baker to remove them when he disassembled the ladder shortly after the accident. On the finding of Garling DCJ, it was the position of the nuts (rusted as they were) that caused the footplate to be dangerously unstable. The fact that the nuts were so rusty indicates that the footplate must have been dangerously unstable for a relatively lengthy period prior to the accident. 42 Next, it is a significant fact that Mr Baker, himself, appreciated the need to inspect the pool and the ladder at least before each swimming season. He was asked what he had done in 1997 to prepare the pool for use in the summer. He said that in the second or third week in October: "[W]e basically have a day cleaning the pool out and draining what water is left in the pool, cleaning it, inspecting all parts of it that I feel that need inspecting, being, you know, the ladder, the skimmer box and pump which I have replaced. We have also replaced the liner in the pool …". 43 While, Mr Baker noticed nothing untoward about the footplate, there was a sign, warning of potential danger, which appears to have been readily observable on inspection. This was the clear gap between the footplate and the coaming (shown in the photograph taken by Mr Ferrier). I have referred to the evidence that the gap was between five and seven degrees of void. Mr Ferrier's testimony, in effect, was that "blind Freddy" could see that the bolt was loose and (as Mr Donaldson rightly accepted) there would be movement in the footplate. Garling DCJ was entitled to rely on this evidence. 44 Thus, his Honour was entitled to find that the gap between the footplate and the coaming was a patent sign that the footplate might be in a dangerous condition. There was evidence that the gap was, at least, a plainly discernible indication that the footplate was not tightened flush with the coaming. Mr Baker, himself, accepted that if the bolts were not adequately tightened the footplate "would obviously wobble". 45 Mr Baker recognised that the ladder needed inspection and, a month or so before the accident, he did, in fact, inspect the ladder. Were the footplate (an object that was an integral part of the ladder) to be more than unstable to a slight degree, it would constitute an obvious source of danger. In the particular circumstances that I have described, I consider that Garling DCJ was entitled to find that Mr Baker should have inspected the ladder (and the footplate, in particular) with due care. On the evidence, had he done so, he would have noticed the gap and the serious instability. 46 Accordingly, I am not persuaded that Garling DCJ erred in finding that Mr Baker ought to have known that the footplate was unstable and, therefore, should have refastened the bolts to ensure that the footplate was flush with the coaming. 47 In the circumstances, I would dismiss the second ground of appeal and propose that the appeal be dismissed with costs.

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