Citation : PERROZZI -v- HOMESTYLE PTY LTD [2005] WADC 145

Negligence - Occupiers' liability - Where respondent collided with unmarked transparent glass in closed door at entrance to display home and fell backwards - Relationship between the Occupiers' Liability Act 1985 (WA) and common law principles - Whether risk of injury reasonably foreseeable - Obviousness of risk - Standard of care - Whether glass should have been marked by a motif or other decorative treatment - The relevance of Australian Standard 1288

Negligence - Contributory negligence - Challenge to trial Judge's apportionment - Turns on own facts

Occupiers' Liability Act 1985 (WA), s 2, s 4, s 5

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

British Fame (Owners) v MacGregor (Owners) [1943] AC 197

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512

Coatz v WestCourt Ltd [2003] WASCA 49

Consolidated Broken Hill Ltd v Edwards (2005) A Tort Rep 81-815

Geroheev Pty Ltd v Wheare [2004] WASCA 206

Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614

Howells v Murray River North Pty Ltd [2004] WASCA 276

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44

Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298

Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty; The Wagon Mound (No 2) [1966] UKPC 1; [1967] 1 AC 617

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

Phillis v Daly (1988) 15 NSWLR 65

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431

Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234

Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419

Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994

Town of Mosman Park v Tait [2005] WASCA 124; (2005) 141 LGERA 171

Uzabeaga v Town of Cottesloe (2004) A Tort Rep 81-739

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

Webb v South Australia (1982) 56 ALJR 912

Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839

Dailly v Spot-on Investments Pty Ltd (1995) A Tort Rep 81-363

David Jones Ltd v Bates [2001] NSWCA 233

Gondoline Pty Ltd v Hansford [2002] WASCA 214

Owners Strata Plan 30889 v Perrine [2002] NSWCA 324

Taber v NSW Land & Housing Corp [2001] NSWCA 182

Wilkinson v Law Courts Ltd [2001] NSWCA 196

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460

1 MARTIN CJ: I agree with Buss JA that this appeal must be dismissed for the reasons which he gives.

2 ROBERTS-SMITH JA: I agree with the reasons of Buss JA.

3 BUSS JA: At all material times the appellant was a builder of residential dwellings and the owner and occupier of a display home known as "The Australis" at 5 Poseidon Road, Heathridge.

4 On 21 January 2001, at about 4.45 pm, the respondent visited the display home with his wife and three young children. He had purchased a home in Wanneroo which he and his wife planned to renovate. The respondent believed the display home included a feature that he and his wife proposed to incorporate in their home, when carrying out the renovations.

5 The respondent entered the display home through the front entrance, which comprised two glass doors. Each door could be opened inwards and positioned against an interior wall of the entry hall. The right-hand door, viewed from outside the premises, was open and abutting an interior wall. The respondent entered the display home through that door. The left-hand door, viewed from outside the premises, was closed. After a brief inspection of part of the display home, the respondent returned to the vicinity of the front entrance with the intention of leaving. However, he walked into the glass panel of the closed left-hand door. His nose and head struck the glass, and the impact caused him to fall backwards. The back of his head struck the tiled surface of the entry hall, and he suffered catastrophic injuries to his cervical spine. He is, in consequence of the accident, an incomplete tetraplegic.

6 The respondent commenced proceedings against the appellant in the District Court for damages. He claimed that his injuries were caused by the appellant's negligence. The action was tried before Muller DCJ. Damages were agreed. The only issue at trial was liability. His Honour found that the appellant had been negligent. His Honour also made a finding of contributory negligence, and decided that the respondent's damages should be reduced by 25 per cent.

7 The appellant appeals to this Court against the learned Judge's findings. It contends that his Honour should have found that it was not negligent. Alternatively, it contends that his Honour's assessment of the extent of the respondent's contributory negligence was in error, and that

the respondent's damages should be reduced by a percentage greater than 25 per cent.

8 Numerous photographs of the two doors, taken shortly after the accident, were tendered at trial. They reveal that each door comprised a single clear glass panel surrounded by a dark metal border or frame. There was another glass panel above the doors, also surrounded by a dark metal border or frame, which extended across the front entrance. At the base of the doors there was a small ledge or, perhaps, the lower part of the frame which surrounded the glass panels. The glass panel of each door had a width of about 1 metre. The right-hand door had a visible handle, but the left-hand door did not. It had a concealed locking mechanism. At the time of the accident there was a large pot, in the entry hall, in front of the left-hand door. Lights were located on an external wall in the vicinity of the glass doors, on an internal wall, and in the ceiling of the entry hall. When the respondent entered the display home, and when the accident occurred, the lights were illuminated.

9 The learned Judge summarised, at [4], the respondent's evidence as to how the accident occurred:

" ... the [respondent] said he was not in a hurry to leave the display home. On taking the couple of steps from the far wall of the entrance hall to the doorway he said he was not distracted but looked straight ahead through what he did not realise then was the clear glass of the closed door. He said he believed he was walking through an open door. Under cross-examination he said he did not see any part of the frame of the closed left hand door. He agreed that had he been looking down he might have seen the framework at the bottom of the closed left door. As it was his focus was on what he thought was an open door but, in fact, was the glass panel of the closed door. He said he did not see the vertical frame of the closed left door either. Significantly, he disagreed that the vertical frame was in his field of vision as he left and said he simply did not notice that what has been described as the left hand door was closed."

10 Australian Standard 1288 ("AS 1288"), which was published when the display home was constructed, was received into evidence. It is entitled "Glass in buildings - Selection and installation". Clause 5.1 provides:

"Where glass is likely to be subjected to human impact, it shall comply with the human-impact safety requirements of this Section."

"Where transparent glass is used in doors or side panels or is located so that it may be mistaken for a doorway or unimpeded path of travel, it is recommended that it be marked by means of a motif or other decorative treatment to indicate its presence. However, such marking is not a substitute for the use of safety glazing when this is required by clauses in this Section."

11 Neither of the front doors in the display home was marked by a motif or other decorative treatment. The respondent called expert evidence in relation to the marking of glass panels. Dr Leon Jacob, a fellow of the Institute of Engineers Australia, a visiting lecturer in glass technology at the University of Sydney and a former chairman of the committee responsible for preparing AS 1288, said that at all material times it has been generally accepted practice in the building industry to mark transparent glass used in doors and side panels with a form of decorative treatment. The object is to create a "visual barrier" to prevent the glass from being mistaken for an unimpeded path of travel. The respondent also called expert evidence from Ms Kerry Butler, a certified professional ergonomist. She said that the use of a motif or other decorative treatment on transparent glass doors or panels is likely to alert people and reduce the likelihood of their walking into the door or panel. The decorative treatment is an optical or visual cue to the existence of the glass barrier.

12 Although the front doors of the display home failed to conform to note 6 to cl 5.1 of AS 1288, there was no evidence of any earlier accident of a similar nature at the display home in question or any of the numerous other display homes which the appellant had owned and opened to the public. Before the accident, about 4,000 people had visited the display home in question without incident.

13 In par 3 of his statement of claim, the respondent alleged that the appellant owed him duties, as follows:

" ... a general duty of care and/or a duty pursuant to Section 5 of the [Occupiers' Liability Act 1985] to the effect that the [appellant] would take all reasonable care to see that the [respondent] did not suffer injury or damage by reason of any danger whilst on its premises."

In par 5, the respondent pleaded that the accident was caused by the appellant's "negligence and/or breach of Section 5 of the Act in that the left-hand front door was made of clear glass and had no decals applied to it to ensure that it was visible and it thereby constituted a danger to the [respondent] within the meaning of the Act". The respondent then set out various particulars which were said to apply to the common law claim and also the claim for breach of s 5.

The learned Judge's findings in relation to negligence

14 The appellant conceded that it was an "occupier of premises" within the meaning of s 2 of the Occupiers' Liability Act 1985 (WA) ("the Act") and that it owed the respondent "a duty of care". The appellant contended, however, that it had not breached the duty. The learned Judge's findings on liability are set out at [18] - [24]:

"[18] The [respondent] had only entered the home through the open door seconds before the accident occurred. It is difficult to comprehend how he did not see and react to the dark metal framework surrounding the closed glass door. But the [respondent] did say that, although not in a hurry, he had his head up and was looking forward when he walked into the door. He did not see any of the framework even through his peripheral vision.

...

[20] The question is whether the [appellant] unreasonably failed to take specific steps to guard against the danger of someone who, like the [respondent], might have focused on the glass panel when leaving the entry hall oblivious to the other features indicating the presence of a closed doorway. I do not believe it is any answer to this question to say that visitors to the display home could be expected to exercise ordinary care for their own safety. Judging the matter prospectively, as I agree I am required to do, I believe there was certainly a risk of someone overlooking the obvious features of the closed doorway and walking into the clear pane of glass. That risk was always there even on the assumption that visitors to the display home would exercise ordinary care for their own safety.

[21] I am satisfied that a reasonable person in the [appellant's] position should have foreseen the risk of injury to someone who, like the [respondent], focused on the glass panel in the doorway and overlooked the other features indicating that there was a door and that it was closed.

[22] Counsel for the [appellant] submitted that, even if there was a risk which a reasonable person in the [appellant's] position should have foreseen, that risk of injury was so remote that it called for no response from the [appellant]. Support for this submission is to be found in the evidence that numerous visitors, perhaps as many as 4,000, visited the display home over a 14 month period without any similar kind of accident having been reported. I accept this is a significant factor but it does not alter my view that the risk of injury, while remote, was still reasonably foreseeable. The magnitude of the risk and its degree of probability have to be assessed. While most visitors exercising ordinary care for their own safety would have seen the obvious features of a closed doorway there was always a real risk of less attentive persons overlooking these features and focussing on the glass panel believing it to be an open access or exit. In this regard the Australian Standard 1288 is a significant factor. The experts have recognised the risk of transparent glass panels being mistaken for an unimpeded path of travel and have recommended that it should be marked in some way as to indicate its presence. There was a reasonably inexpensive and convenient way of minimising the risk by marking the glass panel with a motif or decal. It is no answer to say this might have affected the aesthetic appeal of the doorway. Had that been done it is reasonable to assume that a visitor who, like the [respondent], was oblivious to the other features indicating a closed doorway, and focused on the glass panel itself, believing it to be an open exit, would see the markings on the glass and realise his or her error before it was too late.

[23] I believe the [appellant's] duty to visitors to the display house included the placement of some visible sign or mark on the glass panel of the closed doorway. ...

[24] I am satisfied the [appellant's] use of clear glass in the closed front door without placing some form of mark on the glass panel to warn visitors like the [respondent] that the door was in the closed position was negligent."

The learned Judge's findings in relation to contributory negligence

15 The learned Judge was satisfied that the respondent failed to take reasonable precautions against a foreseeable risk of injury. His Honour said, at [27]:

" ... [the respondent] entered the display home through the open right hand door and walked past the closed left hand door as he did so. He only took a couple of steps into the hallway before turning to leave. Whether he was distracted by the fact that his wife and children were well ahead of him, or whatever the reason might have been, he did not see the dark metal frame of the closed glass doorway. Had he been reasonably alert and keeping a proper lookout I believe he should have done so. Contrasting the degree of the [respondent's] departure from a reasonable standard of care with that of the [appellant] I believe the causal contribution of the [respondent's] negligence to his injury should be assessed as being 25 per cent. ... "

"Ground 1 - Scope of Duty

In light of the [respondent's] evidence and the Trial Judge's findings, the Trial Judge erred in law, in concluding that the scope of the [appellant's] duty of care extended to marking the glass. His Honour should have found that if the [respondent] had exercised ordinary care, he would have noticed the door before hitting it, and therefore the [appellant] had discharged its duty of care.

Ground 2 - Standard

The Trial Judge erred in law in placing reliance on the Australian Standard (at paragraph 22) when the recommendation in the Standard was or may have been (a) an attempt to safeguard visitors who are not exercising ordinary care for their own safety, and (b) not intended for circumstances where the presence of the glass was otherwise indicated.

Ground 3 - Contributory Negligence

Alternatively, the Trial Judge's contributory negligence assessment of 25% was an error of fact because it was too low."

The Act and its relationship with the common law of negligence

17 The history of the Act is summarised by Associate Professor Handford in his article, "Through a Glass Door Darkly: Jones v Bartlett in the High Court" (2001) 30 (1) UWA Law Rev at 85 - 87. Professor Handford notes, at 85 - 86:

"The Occupiers' Liability Act 1985 (WA) was enacted to reform the unsatisfactory common law position under which the liability of occupiers for damage caused to visitors as a result of the dangerous condition of the premises depended on whether the visitor was a contractual entrant, an entrant by right, an invitee, a licensee or a trespasser. Each was owed a different duty of care, ranging from the exacting obligations owed to certain categories of contractual entrant to the very low duty owed to a trespasser (amounting to little more than a duty not to cause intentional or reckless harm). It seemed that the various rules were so entrenched that the courts could do little to ameliorate the position. Recognition of this state of affairs in England had resulted in the passing of the Occupiers' Liability Act 1957, replacing the categories with a 'common duty of care' owed to all lawful visitors. This Act applied only to England and Wales, but the Occupiers' Liability (Scotland) Act 1960 was more extensive, including even trespassers within the ambit of the common duty. Similar legislation followed in other common law countries - but in Australia not until the 1980s, when three States modified the common law position. In Western Australia, the Act ... endeavoured to piece together the best provisions from other jurisdictions and weave them into a coherent whole, rather than starting afresh. ..."

"An Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises."

Section 4 provides, relevantly, that sections 5, 6 and 7 are to have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of, relevantly, dangers to that person which are due to the state of the premises or to anything done or omitted to be done to the premises and for which the occupier of premises is by law responsible. Section 5 provides, relevantly:

"(1) ...the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

(2) ...

(3) ...

(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -

(a) the gravity and likelihood of the probable injury;

(b) the circumstances of the entry onto the premises;

(c) the nature of the premises;

(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;

(e) the age of the person entering the premises;

(f) the ability of the person entering the premises to appreciate the danger; and

(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."

Sections 6 and 7 are not relevant, for present purposes.

19 In 1987, the High Court, in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, abandoned the traditional approach of the common law to occupiers' liability. The High Court decided that it was no longer necessary to classify entrants on premises as invitees, licensees or trespassers. An occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises.

20 The relationship between the Act and the common law of negligence was considered on numerous occasions by the Full Court of the Supreme Court of Western Australia. Different opinions were expressed. I will provide some examples. It is not an exhaustive review.

21 In Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204, Murray J referred, at 62,005, to ss 4 - 7 of the Act, and said that those provisions are a "statement of the standard of care owed by an occupier of premises to an entrant thereon". His Honour added:

"The statute is to displace [the rules of the common law] as to the duty of care only in the sense that it is the statutory rules which are to set out the standard of care necessary to discharge the duty imposed by law."

"So not only is the Act concerned to leave to the common law the definition of the circumstances in which a duty of care will be held to exist, but it does not seek to displace in any special way the need to resolve the question of fact of causation which the common law would impose to link the finding of a duty of care owed by the occupier in respect of his or her premises to the plaintiff with the harm suffered by the plaintiff. If that finding of fact can be made, then the Occupiers' Liability Act will supply the answer to the question whether in respect of the harm so caused, the plaintiff may recover from the defendant upon the basis that there is established to have been a falling short or breach of the requisite standard of care imposed by the statute having regard to s 5(1) and (4). In my opinion, what I have written above is consistent also with the view of the place of the Act and its operation taken by the Full Court in Wallis v Town of Albany (1989) Aust Torts Reports 80-283."

In other words, his Honour held that the common law continues to determine whether an occupier owes a duty of care to an entrant and also governs the issue of causation. The Act prescribes the standard of care required to discharge any duty of care imposed by the common law.

22 In Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994, Anderson J (with whom Malcolm CJ and Ipp J agreed) held that the Act imposes on an occupier a duty of care to entrants and that the Act covers the field. A concurrent duty is not owed at common law. His Honour said, at 13:

" ... the Occupiers' Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the statute and the nature and extent of the duty is defined by the statute. Insofar as par 6 of the statement of claim seeks to plead a separate cause of action based upon common law principles, or seeks to invoke those principles in aid of the action based upon the statute, it is misconceived and discloses no cause of action.

The duty upon the respondent was the duty imposed by the statute. It is a question of fact in any particular case whether the occupier has observed the standard required by the statutory duty. ..."

23 Subsequently, many cases have been litigated on the basis that an occupier owes an entrant concurrent duties at common law and under s 5 of the Act.

24 In Coatz v WestCourt Ltd [2003] WASCA 49, Murray J said, at [2]:

"The claim was put alternatively on the ground of a breach of the statutory duty imposed upon the respondent as an occupier of the site within the meaning of the Occupiers' Liability Act 1985 (WA) s 5. The trial Judge thought the content of that duty was the same as that imposed on the respondent in respect of negligence at common law. His Honour therefore found it convenient to deal with the matter within the framework of the pleaded particulars of negligence. No attention was given to this aspect of the case on the appeal and I would propose to say no more about it (cf Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166)."

25 In Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298, the appellant brought a claim against the third respondent ("ANI") for damages in respect of personal injuries allegedly suffered in consequence of ANI's negligence, further or alternatively, its breach of the statutory duty allegedly imposed under the Act. Malcolm CJ (with whom Murray and Parker JJ agreed) said, at [54]:

"Her Honour rightly concluded that ANI was the occupier of the relevant premises, so that the statutory duty of care applied as between ANI and the appellant. Hence, there were not separate causes of action by the appellant against ANI in negligence and [for] breach of the Occupiers' Liability Act. ANI operated its business from the premises and it continued to operate that business while work was being carried out extending the premises. By s 5(1) of the Act, ANI owed to persons entering on the premises, in respect of dangers which were due to the state of the premises, or anything on the premises and for which ANI was responsible, a duty to take such care as, in all the circumstances of the case was reasonable, to see that a person would not suffer injury or damage by reason of any such danger."

26 In Uzabeaga v Town of Cottesloe (2004) A Tort Rep 81-739, Murray ACJ expressed the view, at 65,628 [14], that "the reliance by the appellant, in addition to pleading negligence at common law upon the provisions of s 5 of the Occupiers' Liability Act 1985 (WA) added no additional dimension of law to the legal framework in which the case fell to be decided".

27 In Howells v Murray River North Pty Ltd [2004] WASCA 276, Malcolm CJ said, at [27], that the appellant's claim under s 5 of the Act "added nothing" to his claim in negligence at common law. Similarly, according to Murray J, at [64]:

"This claim of breach of statutory duty was, in my view, rather a red herring and an unnecessary distraction because, at best, it added nothing to [the appellant's] claim in negligence. ..."

Wheeler J (as her Honour then was) referred, at [150], to the appellant's common law claim, and his claim for breach of the Act and of the Occupational Safety and Health Act 1984 (WA), and observed:

"It was not contended that there was a relevant difference in the nature or scope of the duty created by either statute, which would lead to a different result from that which would apply at common law. Assuming either or both statutes to apply, the claim in respect of them therefore would stand or fall with the finding in respect of the particulars of the common law claim."

28 In Geroheev Pty Ltd v Wheare [2004] WASCA 206, McLure J (as her Honour then was) said, at [51]:

"The Commissioner's analysis and findings concerning the accident are in terms of the requirements of the general law. However, the findings and conclusions are also applied to the claim for breach of statutory duty. No party contends that there is a material difference between the statutory and general law claims. There is authority for that view: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [226] per Kirby J. As the matter is conceded, I proceed on that basis."

Also see, to similar effect, her Honour's comments in Town of Mosman Park v Tait [2005] WASCA 124; (2005) 141 LGERA 171 at 181 [39].

29 Bryant and Tonich were not cited in Coatz, Kschammer, Uzabeaga, Howells, Geroheev or Tait.

30 It is unnecessary, in consequence of the manner in which the litigation was conducted at trial and before this Court, to determine, in this appeal, the proper relationship between the Act and the common law of negligence. It is an issue which will, no doubt, require consideration and resolution in an appropriate case.

The conduct of the litigation at trial and before this Court

31 The respondent pleaded, in effect, that the appellant owed him concurrent duties of care at common law and under s 5 of the Act. As I have mentioned, the appellant conceded that it owed the respondent "a duty of care". The juridical basis for that duty was not explored either at trial or before this Court.

32 The learned Judge referred, in his reasons, to s 2 of the Act, in the context of recording the appellant's admission that it was an "occupier of premises" as defined in that section, but did not otherwise refer to the statutory provisions. No express reference is made in his Honour's reasons to the various factors identified in s 5(4) of the Act. Those factors are relevant in determining whether an occupier of premises has discharged his or her duty of care. It is apparent, however, from his Honour's reasons, considered as a whole, that he gave consideration to the various factors set out in s 5(4).

33 Counsel for the parties, in their written and oral submissions to this Court, did not refer to the Act, and confined their argument to common law principles.

34 As I have mentioned, an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises. See Australian Safeway Stores at 488; Phillis v Daly (1988) 15 NSWLR 65 at 76; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263 [17], 289 [102].

35 In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, Mason CJ said, at 47 - 48, in the context of negligence generally:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 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 considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

36 The standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier has been described as what a reasonable person in the position of the occupier would, in the circumstances, do by way of response to the foreseeable risk. See Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662 - 663; Australian Safeway Stores at 488; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at 345 [8].

37 In Neindorf, Gleeson CJ noted, at 345 [8], that the expression "reasonable response in the circumstances", in the context of the generalised standard of care which has developed in the common law relating to occupiers' liability, raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve by reference to the legal framework which existed before the High Court's decision in Australian Safeway Stores. As his Honour said:

"People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. ... The problems did not disappear [with the High Court's decision in Australian Safeway Stores]. They now require consideration under a somewhat different rubric. The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant. Yet the problem remains."

38 Senior counsel for the appellant said, in submissions before this Court, that there were two aspects to ground 1. First, it was not reasonably foreseeable that a careful visitor would suffer injury from the glass panel of the left-hand door. Secondly, even if it was reasonably foreseeable that a careless visitor might suffer injury from that glass panel, a reasonable response to the foreseeable risk of harm did not require the glass to be marked. Senior counsel argued that the glass doors were in a confined space, the dark metal border or frame which surrounded each door was a striking point of demarcation, the width of each glass panel was relatively narrow, and there was the large pot, in the entry hall, in front of the left-hand door. It was obvious, in the circumstances, to an ordinary careful visitor, that the glass panel was not an opening. Senior counsel submitted:

" ... there is nothing in the particular circumstances of this case which suggested that this door or this panel was a danger to somebody exercising reasonable care and so one is left then with the question if the real danger, insofar as there is danger, is for persons acting negligently, given that this is in a dwelling home - it's a clearly ordinary situation encountered in a dwelling home - should there have been a marking? In our submission, no.

To hold to the contrary is tantamount really to requiring all glass panels to be marked and the community standards we know aren't to that effect. ... we know from our ordinary experience that glass in a residence is commonly not marked."

39 Senior counsel for the appellant relied on the following observations of Gleeson CJ in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at 177 [22] - [23]:

"In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained.

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."

40 Senior counsel for the respondent argued that ground 1 (and the other grounds) does not include an attack on the learned Judge's finding, at [21], that "a reasonable person in the [appellant's] position should have foreseen the risk of injury to someone who, like the [respondent], focused on the glass panel in the doorway and overlooked the other features indicating that there was a door and that it was closed". Although the concept of "reasonable foreseeability" is not expressly mentioned in ground 1 (or any other ground), it is expressly referred to in par 6 of the appellant's written submissions and underpins the contentions advanced in par 2 and pars 5 - 8 of those submissions. Senior counsel for the appellant, in his oral submissions, developed the argument in relation to reasonable foreseeability, in the context of ground 1, and I am satisfied that the respondent would not be relevantly prejudiced if this Court were to deal with the point on its merits. I will therefore examine the concept of reasonable foreseeability, and the appellant's submissions in relation to it, in determining ground 1.

41 The first issue to be determined is whether it was reasonably foreseeable that a person in the position of the respondent might mistake the glass panel of the closed left-hand door for a passageway and suffer injury as a result of colliding with it.

42 In my opinion, the appellant's primary contention that it was not reasonably foreseeable that a "careful visitor" would suffer injury from the glass panel of the left-hand door, and its secondary submission that, even if it was reasonably foreseeable that a "careless visitor" might suffer injury from that glass panel, a reasonable response to the foreseeable risk of harm did not require the glass to be marked, do not accurately address the first issue I have identified. That issue is to be determined without dividing the issue into a separate consideration of reasonable foreseeability in relation to:

(a) a person in the respondent's position who may be classified as a "careful visitor"; and

(b) a person in the respondent's position who may be characterised as a "careless visitor".

The appellant's contentions are, however, relevant to another issue, namely: if it was reasonably foreseeable that a person in the respondent's position might mistake the glass panel of the closed left-hand door for a passageway and suffer injury as a result of colliding with it, what, if anything, would a reasonable person in the position of the appellant have done to avoid the foreseeable risk of harm?

43 A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Shirt at 48; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty; The Wagon Mound (No 2) [1966] UKPC 1; [1967] 1 AC 617 at 641 - 643; Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 at [34].

44 The test of reasonable foreseeability, as stated in Shirt, must, of course, be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 at 64 [54]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 480 - 481 [213].

45 The display home in question had a commercial and public character in that the appellant issued a general invitation to members of the public to inspect it. By issuing such an invitation, the appellant knew or should have known that the invitation would be accepted by people of varying abilities, capacity and attention. They would include the elderly, children, people with disabilities, and people who were momentarily or habitually inattentive or careless. Compare the observations of Kirby J in Neindorf at 355 [60].

46 In my opinion, there is no doubt that an injury of the kind suffered by the respondent, and the circumstances in which an injury of that kind might be suffered, were reasonably foreseeable.

47 The second, and critical, issue to be determined concerns what, if anything, a reasonable person in the position of the appellant would have done to avoid the foreseeable risk of harm. It involves an assessment of what would have been reasonable and practicable for the occupier to do. As Hayne J said in Neindorf at 361 [93]:

"This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 80 ALJR 1). Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures?"

48 The relationship between the occupier and the entrant is relevant to a judgment about what reasonableness requires of the occupier. In Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ said, at 243 [24]:

"That is not to say, however, that the law now disregards any aspect of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence)."

"The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them."

49 In the present case, the appellant had an economic interest in attracting the respondent and other members of the public to enter the display home. The appellant's purpose in inviting members of the public to inspect the premises was, no doubt, to endeavour to secure engagements to construct houses in that or some other style. The invitation was extended to everyone, without discrimination or limitation. In my opinion, the display home's commercial and public character distinguishes it from ordinary residential premises of the kind under consideration in such cases as Jones v Bartlett.

50 The obviousness of a risk is a relevant consideration in determining what, if anything, reasonableness requires of an occupier.

51 In Webb v South Australia (1982) 56 ALJR 912, the litigation concerned the liability of a public authority for the condition of the edge of a footpath. The respondent contended that the intervening space, caused by the structure of the footpath, was "a very obvious feature" and, as a result, was not dangerous. Mason, Brennan and Deane JJ said, at 913:

"This finding seems to have been based on its obviousness and on the circumstance that in the seven years that elapsed since its construction there was no record of any previous accident. But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to a bus stop there existed the distinct possibility that a pedestrian, because he was in a hurry to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to avoid injury to himself. The happening of the accident demonstrated, if demonstration be needed, that the construction had the potential to cause injury.

Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must recognize that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. It seems to us that the courts below gave undue emphasis to the circumstance that injury could be avoided by a pedestrian who took reasonable care for his own safety."

52 The assessment of what would have been reasonable and practicable for an occupier to do must be undertaken on the basis that the occupier had to take into account "the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety": Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 431. But, as Toohey and Gummow JJ observed in Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431 at 454 [50], in relation to the respondent/occupier in the case before them:

" ... this does not mean that the respondent was obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger. This is particularly so in the case of the cliff which did present an obvious danger."

Toohey and Gummow JJ concluded, at 455 [53], that in Romeo the risk in question existed only in the case of someone ignoring the obvious.

53 People ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards. Some allowance must, of course, be made for inadvertence. Each case will turn on its own facts. See Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, per Gaudron, McHugh and Gummow JJ at 581 [163].

54 In my opinion, the significance to be accorded to the obviousness of a risk, in determining whether an occupier has discharged his or her duty of care to an entrant, depends on all the circumstances of the particular case. As Ipp JA pointed out in Consolidated Broken Hill Ltd v Edwards (2005) A Tort Rep 81-815 at 68,017 [53]:

"Obviousness of risk is ... merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of duty of care. ... The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance to be effectively conclusive."

55 In Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419, the plaintiff slipped on a patch of oil or grease while walking across a car park. Basten JA, with whom Handley JA and Hunt AJA agreed, said at [25]:

" ... obviousness depends to a significant extent on the circumstances and the position of the perceiver. That which is obvious from one position at one time of day or in some circumstances, may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the plaintiff into account and then to inquire whether there was some aspect of her circumstances which was not reasonably foreseeable by the occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must be answered by reference to her particular circumstances."

If the obviousness of a risk, and the reasonableness of an expectation that an entrant will take care for his or her own safety, were always conclusive against the imposition of liability on an occupier, there would be little room for the doctrine of contributory negligence. See Thompson v Woolworths at 247 [37].

56 In my opinion, the learned Judge was correct in finding that a reasonable person in the position of the appellant would have marked the transparent glass of the left-hand door with a motif or other decorative treatment to avoid the foreseeable risk of a person, in the respondent's position, mistaking the closed door for an unimpeded path of travel, and suffering injury as a result of colliding with it. His Honour's conclusion that the appellant breached its duty of care was not inconsistent with his findings that:

(a) the closed left-hand door was indicated by "obvious features": [20] of his reasons; and

(b) it was "difficult to comprehend how [the respondent] did not see and react to the dark metal framework surrounding the closed [left-hand] door": [18] of his reasons.

The "obviousness" of the closed left-hand door was a factor to be taken into account, as his Honour did, in deciding whether the appellant had breached its duty, and the weight to be given to that factor depended on all the circumstances. In my opinion, the matters which pointed strongly towards a conclusion of breach were the commercial and public character of the display home (including the general invitation issued by the appellant to members of the public to inspect it), the magnitude of the risk (which was significant, although the degree of probability of the occurrence of injury was low), the location of the unmarked transparent glass in a thoroughfare at the entrance to the display home, and the inexpensive and obvious means of guarding against the risk by marking the glass with a motif or other decorative treatment.

57 The appellant did not challenge the learned Judge's findings of primary fact or his Honour's finding in relation to causation.

58 I consider that the learned Judge's conclusions, at [23] - [24], that the appellant's duty to the respondent required it to place some visible sign or mark on the transparent glass of the left-hand door, and that its failure in that regard was negligent, were underpinned by his Honour's findings and reasoning at [20] - [22] of his reasons.

59 The learned Judge did not err as alleged in ground 1.

(a) it indicated that the risk of a person, in the respondent's position, suffering an injury was reasonably foreseeable in that in note 6 to cl 5.1 it is stated, in effect, that where transparent glass is used in doors or side panels it may be mistaken for a doorway or unimpeded path of travel; and

(b) note 6 to cl 5.1 recommended that the transparent glass in question be marked by means of a motif or other decorative treatment to indicate its presence and, implicitly, thereby prevent or diminish the risk of harm.

61 Even if the particular hazard to which note 6 to cl 5.1 is directed is confined to the risk of injury from glass which is broken as a result of a collision, that provision was, at least, evidence of the existence of the risk that a person might mistake unmarked transparent glass, in a door or side panel, for a doorway or unimpeded path of travel, and collide with it.

62 In my opinion, the learned Judge was entitled, as he did, to take into account AS 1288 as evidence that there was, in the circumstances, a reasonably foreseeable risk of transparent glass (of the kind and in the location in question) being mistaken for an unimpeded path of travel, and that there was a simple and inexpensive means by which that risk could be prevented or diminished. See [22] of his Honour's reasons.

64 The learned Judge's conclusion that the respondent was guilty of contributory negligence involved findings that he had failed to take reasonable care for his own safety in that his behaviour constituted a "departure from the standard of care of the reasonable man": Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16.

65 An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 at 68.

66 A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201. It is well-established that such a finding, if made by a Judge, is not lightly reviewed. See Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494.

67 In the present case, I am satisfied that the learned Judge did not make any error of fact or law in determining the extent to which the respondent's damages should be reduced in consequence of his contributory negligence. A reduction of 25 per cent was within the applicable range.

• The relevant evidence
• The respondent's pleaded case
• The learned Judge's findings in relation to negligence
• The learned Judge's findings in relation to contributory negligence
• The grounds of appeal
• The Act and its relationship with the common law of negligence
• The conduct of the litigation at trial and before this Court
• Duty of care: general legal principles
• Standard of care: general legal principles
• Ground 1
• Ground 2
• Ground 3
• Conclusion