Li Fu v Owners of Strata Plan 75626

District Court of NSW|2012-05-17|Before: Judge P

The Plaintiff's Claim 1The plaintiff claims damages for personal injury suffered by her on 7 July 2008 on the defendant's premises at 320 Harris Street, Pyrmont. The plaintiff was born on 30 January 1956 in Shanghai and had come to Australia in 1999. In 2001 she had commenced a cleaning business with her husband, and it was in the course of the conduct of that business that she visited the defendant's premises on 7 July 2008. 2The plaintiff attended with her husband to attend to general maintenance to a unit within the defendant's building. That building was a multi-storey building comprising of more than 120 residential units. Entry was gained from Harris Street into an entrance area which housed at least two commercial offices. Entry to the units was gained through that entrance area, up a short flight of stairs and through a security door to a foyer where the lifts were located. On the same level as the lifts were located a number of residential units, including the one which required maintenance, namely UG4. 3The security entrance comprised three glass panels. In the middle was a glass door with a vertical cylindrical metal handle on each side of the glass. As one approached that door from the entrance of the building, the handle was on the left hand side of the door. When exiting the building, the handle was located on the right hand side of the door. The door also had a metal strip along its base (see Exhibit E). 4On either side of the door were glass panels. As one approached the security door from the entrance, the panel on the left hand side ("Panel 1") measured 1440 mm wide. The panel on the right hand side of the door ("Panel 3") measured 1500 mm wide. The door ("Panel 2") measured 1000 mm wide, and was inward opening. 5The purpose of the panels was to provide a security system for the residential building, so that access through the door could only be obtained by residents or with residents' consent. The security system comprised a security intercom on the left hand side wall as one approached the glass doors from the entrance, together with a sensor so that persons holding an authorised key card could swipe the sensor which would unlock the glass door. 6To exit the secure area, a button was provided on the right wall as one approached the glass door, which when activated, unlocked the door for those leaving the premises (see photos 7 & 8 in Exhibit C and Exhibit D). 7The defendant admitted that it owned and occupied the premises.

Circumstances of the Plaintiff's Injury 8The plaintiff arrived with her husband at the premises on 7 July 2008 at approximately 2.50pm. They parked outside, they carried their cleaning utensils and entered the building from Harris Street and walked up the stairs inside the entrance towards the security door. The plaintiff gave evidence that as they approached the security door, someone came out and held the door open for them. Once inside the foyer, they looked for the unit, UG4, where they were to carry out cleaning and maintenance. The unit UG4 was down a corridor off the foyer to the left of the entrance. 9Once they had finished their work, at approximately 3.30pm, the plaintiff and her husband left the unit. The plaintiff left first, leaving her husband to lock the unit, and walked down the corridor towards the front of the building. She gave evidence that the pathway along the corridor was quite dark and towards the end of the pathway the corridor curved. That curve is shown in Exhibit C, photograph 5. The plaintiff walked around the curve and kept walking. She said that she was looking in front of her, but did not realise there was a glass barrier and she collided with the glass. The plaintiff felt numbness around her mouth and upper lip, which was very painful and when she put her hand to her mouth she felt blood and could feel that her teeth were loose. In fact, her left front upper tooth came out and she noticed three other front teeth were loose. The plaintiff also suffered a laceration to her upper lip. 10Shortly after the collision, the plaintiff's husband came upon the scene. He immediately called the real estate agent who had allocated the job to them, and contacted the building manager.

The Issues in the Proceedings 11The issues to be determined are as follows: (1) Whether the defendant, as occupier of the premises, breached any relevant duty of care to the plaintiff. (2) Whether the defendant had delegated its obligations to Hayson Associated (Sales) Pty Ltd ("Hayson"). (3) Whether such breach of duty, if any, was causative of the plaintiff's injuries. (4) Whether the plaintiff contributed to her own injuries by breaching her duty to take care for her own safety. (5) The nature and extent of the plaintiff's injuries. 12Hayson has not been joined as a defendant to the proceedings and is subject to a Cross-Claim, the hearing of which is to take place following the determination of these proceedings. 13Damages are to be assessed pursuant to the Civil Liability Act 2002 ("The Act").

The Evidence 14The plaintiff's evidence in chief as to the circumstances of her injury is paraphrased in paragraphs 8, 9 and 10 above. The plaintiff had worn eyeglasses for approximately ten years prior to the incident, and with glasses, her eyesight was quite good. She gave evidence that when she arrived at the premises and before she entered through the security door, she noted that the premises were dark and in fact said to her husband: "It is very dark here". 15On leaving the unit UG4, having finished her work, she stated that the pathway was quite dark and towards the end of it, there was a curve in the wall which she followed. At that time she did not realise that there was a glass barrier there and she hit the glass. Immediately beforehand, she had been looking in front of her. 16Following the incident, the plaintiff went to their van on the street and attended to her wound. Whilst there, she took the photos on her mobile phone, which are Exhibit A in the proceedings. When she returned inside the building she saw her husband talking to the building manager and real estate agent, Mrs Shirene Tong. She recognised Mrs Tong as they had been working for her for a number of years. She understood the building manager to be advising her husband to take her to hospital and in fact, her husband drove her to Canterbury Hospital that afternoon. When asked whether she noticed anything about the glass panel that she collided with on the day of the accident ("Panel 1"), she said: "The panel I collided with did not have a vision line on it. The other two did. There were no other markings on it." 17The plaintiff and her husband returned to the building the following day, 8 July 2008. There they took two photos with a mobile phone camera, showing two different views of part of Panel 1 with which the plaintiff collided. The photos are taken from outside the security area and one of them shows the door release switch on the interior wall, inside the secure area. Whilst the photos do not show the whole of the glass panel, they support the plaintiff's contention that the glass panel to the left of the door had no markings on it by way of vision line or decals to warn a person approaching the glass from either side that it was a glass panel. 18The plaintiff returned to the building with her husband on 31 October 2008 and took a further series of photos, which became Exhibit C. The photos are numbered 3-11 and in respect of the security door and glass panels, demonstrate that as at the time when the photographs were taken, there were on Panels 2 and 3 a vision line at approximately the centre of the glass panels (and mid-way up the vertical metal door handle on Panel 2), together with what appear to be vertical markings or decals on Panel 2 (ie the door) and Panel 3. On Panel 1, the decals are shown but no vision line. It was the plaintiff's evidence that the decals were not present on 7 July 2008. A further photograph taken on 31 October 2008 was tendered as Exhibit E. That photograph has on it a yellow coloured circle which the plaintiff indicated was where she collided with the panel. That photograph is taken from outside the security area and therefore Panel 1 is on the left-hand side of the photograph. 19Exhibit D comprised two photographs taken on 13 December 2011. Those photos indicate that, as at that date, Panel 1 still did not have a vision line horizontally across it, but did display vertical stripes or decals, together with some printing on the left-hand side of Panel 1. 20I will deal with the plaintiff's evidence as to damages at paragraphs 58 and following below. 21In cross-examination, the plaintiff was asked how far, in her estimation, was it from the top of the stairs in the entrance area to the security door, to which she replied "about one metre". She did not know how many steps or paces that distance comprised. The plaintiff did not pay attention to the silver handle on the door, or the silver coloured metal on the bottom of the door because someone had come out from inside the premises and held the door open for her and her husband. When asked whether she could see inside the foyer, she stated that it was "very dark". Notwithstanding that, she could see the furniture inside the foyer. Once they had located the unit UG4, it took her and her husband approximately 30 minutes to clean and carry out maintenance. When she left the unit she was carrying a bucket in her right hand. It was about 3.30pm when she finished and walked towards the entrance. She said that she and her husband had another job to go to between the city and Pyrmont, but there was no need for them to get there quickly. The plaintiff gave evidence that she knew there was a door between the foyer and the front door to the building, and further that she knew that it was a glass door. She also knew that there was a possibility that she would have to press a button or use a key to get out of the building, however, normally she would not do that, she would wait for her husband to come. On this occasion she thought the door was further down the passageway because she could not see it. 22When shown photo 6 in Exhibit C, which showed the metal strip at the bottom of the door, the plaintiff said she did not see it. She suggested that the scene facing her was different from that shown in photo number 6, Exhibit C, and said: "I just walked ahead and I did not pay attention to the details." 23When asked whether there was enough light for her to see the metal strip at the bottom of the door, the plaintiff answered: "If I saw the metal strip no way I would have run into the glass. I would be insane to do that." She did not see the metal door handle before the accident. 24It was put to the plaintiff that she collided with the panel because she was not paying attention and she said: "No. I did not see it. It was dark, it was raining on that day and it was dark." 25The plaintiff's husband, John Wong, also gave evidence and corroborated the plaintiff's evidence to the extent that upon arrival at the building the security doors were opened for them by a third person. Mr Wong did not see his wife collide with the glass panel, as he was locking the unit after finishing his work there. He said there were no markings on that glass panel. He confirmed that there was a horizontal vision line across Panels 2 and 3, but not on the panel of glass with which his wife collided. He draw a diagram, which became Exhibit F, demonstrating the horizontal vision line on the panels. 26Mr Wong's evidence diverged from the plaintiff's with respect to some peripheral matters. For example, he said they had no other job to go to and no booking for a job between Pyrmont and the city. Further, the weather was not too bad. It was not raining, but whether it was sunny or not he could not recall. As to the lighting in the foyer inside the security doors, his evidence was that it was "not very bright". 27In cross-examination it was put to Mr Wong that he had no difficulty when he came back to the security doors seeing the door in the foyer of the building, to which he replied: "I did not see it." 28It was put to him further that there were vertical stripes along glass Panel 1 on the panels to the left and right hand side of the door, which he denied. He told the building manager that day that the glass had no markings on it. 29The plaintiff called Mrs Shirene Tong who was the real estate agent who allocated the cleaning job to the plaintiff and her husband. Her office was a short distance from 320 Harris Street and she had some familiarity with the premises, having been managing agent for a number of units there since the building was completed in 2005. Her evidence was that she visited the premises in respect of complaints by tenants for maintenance matters on an average of once per month. In her evidence in chief, when asked about the glass security entrance in July 2008, she stated that she herself had bumped into the panel closest to the left-hand wall (Panel 1). It had no markings on it before July 2008 and she thought she could push it open, however, she bumped her head. This had happened on two occasions. 30When Mrs Tong attended on 7 July 2008 she said to the plaintiff's husband: "I bumped into this door too." 31This was said in the presence of the building manager and she gave evidence that he then said: "Someone else had been injured by this." 32She described the lighting in the lobby as "very dark" and when asked whether she made a written complaint to the building manager, she said that she had written to the building manager, Mr Aspi by email but that she had deleted the email. 33In cross-examination Mrs Tong stated that it was not raining on the day the plaintiff was injured. She was concerned for the plaintiff's safety and that she see a doctor as soon as possible. She gave further evidence that she had personal experience of bumping into glass doors on "five or six times" because of the absence of markings. Mrs Tong had affirmed an affidavit which became annexure G in the proceedings. She gave evidence that the document had been prepared by the plaintiff and her husband, but that having read it, she believed its contents were true. That affidavit confirmed at paragraph 6 that there were no markings whatsoever on the glass panel that the plaintiff collided with, and that looking from the foyer, it looked like it was an open pathway to the outside. The affidavit also confirmed the presence of the white vision line across the panel on the opposite side of the door and that Mrs Tong said to the building manager, in the presence of the plaintiff and her husband: "That doorway is dangerous. Why weren't there marks to show the glass was there. You should get it fixed." 34The defendant called two witnesses on the issue of liability. Mr Mauricio Mencio was the chairman of the relevant management committee for the building and had been in residence in the building since November 2005. He gave evidence that he had used the doorway on many occasions prior to 7 July 2008 and that there were markings on the glass panels from "day one". Those markings comprised decals 3cms in height and 10cms apart across all three glass panels, and that there was also a horizontal vision line across the central doorway and Panel 3, but not on Panel 1. He was not aware of any report of any person colliding with Panel 1, nor had there been any complaint from any person in respect of the lighting in the foyer prior to 7 July 2008. 35In cross-examination it became apparent that Mr Mencio actually walked past the plaintiff a short time after her injury. It was put to him by counsel for the plaintiff that the lighting was dim and variable, to which he replied "definitely not". When it was suggested that the decals were difficult to see, he replied "No, however they could be better." When shown Exhibit B, which were two photos taken the day after the plaintiff's accident which showed no decals in the photograph, he agreed with that proposition with the qualification that someone may have doctored the photo. Mr Mencio adhered to his evidence that the decals were in place from the day he moved into the building. When it was suggested to him that there was a vision line only across the glass door and Panel 3, he replied "to me they were all the same". 36When asked when he was first asked to recall the presence of the decals on the glass as at July 2008, Mr Mencio said that he had been asked for the first time the day he gave evidence. He was relying on his recollection that they were there from when he first moved into the building, although he conceded that had the decals been placed there in late 2008, he would not have been told. He asserted that he was not mistaken about the presence of the decals on the glass panels as at 7 July 2008, notwithstanding that he was shown to have been mistaken about the presence of the writing on the glass Panel 1 shown in Exhibit D. 37The defendant also called Mr Aspi Jussawalla who was the building manager employed by the defendant from 2005 to December 2008. Mr Jussawalla gave evidence that the glass doorway and the panels either side of it were marked with decals from early 2005 and that there had been no changes made to the glass panels. In cross-examination Mr Jussawalla conceded that he was very familiar with the system for gaining access to and egress from the secure building. As to the lighting, it was put to him that it was fairly dark inside the building, to which he replied "it was not that dark". When it was suggested to him that photo 3 in Exhibit C demonstrated that the lighting inside the building was "pretty dim", he stated: "It was dim but light enough for someone to walk in and out of the building". 38Mr Jussawalla was asked about the lighting above the central glass panel and agreed that it does not illuminate the glass to the right of the door, nor did the light illuminate Panel 3. He agreed that the decals or markers were difficult to see on the glass panel. He agreed that there was no white vision line on Panel 1 as shown in Exhibit C, photo 6. Mr Jussawalla conceded that it would have been advantageous to have a white line across Panel 1 as well as Panels 2 and 3. He stated that there had been a horizontal line across all three panels when he took over duties in the building, but could not recall when the line on Panel 1 had been removed. He stated that he had reported it to the builders but he could not remember when. It was put that the absence of the horizontal line could have been addressed by putting coloured tape across glass Panel 1, to which he replied, "it could have been done but I never did it". He agreed that that would have drawn attention to the position of the panel. 39Mr Jussawalla had seen the two cleaners coming towards his office in a hurry, however, this was after the event in which the plaintiff was injured. He could not recall the real estate agent lodging a complaint about the absence of markings on Panel 1. 40Mr Jussawalla had no recollection when the small decals affixed to Panel 1 were applied. He also had no recollection of the occasion upon which Mrs Tong had bumped her head on Panel 1.

The Defendant's Submissions 41The defendant identified the factual dispute between the parties as to whether there were decals in the form of successive 3mm wide vertical stripes at spaced intervals across Panel 1, with which the plaintiff collided. The plaintiff disputes there were any markings in place at the time of the accident and relies on Exhibit B, being photographs taken by her the day after the accident, to support her case. The defendant submitted that the evidence of Mr Mencio and Mr Jussawalla should be preferred on that issue. 42The defendant relied on the management agreement dated 7 February 2008 to submit that Hayson was engaged to manage the premises and that that included supervising the maintenance and repair of the common property, to advise on compliance with workplace health and safety laws and to control and supervise the common property. By that agreement, it had completely delegated to Hayson its duty of care as occupier of the common property. 43The defendant further submitted that there was no evidence that anyone had walked into the door or the panels before or after the plaintiff's accident, however, that submission was not supported by the evidence of Mrs Tong. 44Having referred to ss 5B and 5C of the Act, the defendant submitted that an occupier of premises was under no absolute duty to ensure the safety of persons on premises, that this was not a case in which the defendant had knowledge or a suspicion that made it unreasonable not to upgrade the markings on the panels or call an expert for advice, and further, that the defendant was not required to commission experts to inspect the premises to look for latent defects. 45The defendant's submitted that it would be unreasonable to require a "starter corporation" to undertake a detailed audit of every fixture and feature of the building and it was entitled to rely on the expertise of the builder and installer of the glass panels. In complying with this duty of care it had acted reasonably in delegating its duty to an independent contractor, namely, Hayson, and was not liable for the acts or omissions of that agent. On that basis there had been no breach of duty by the defendant. 46The defendant further submitted that the plaintiff had failed to satisfy that its alleged negligence was a necessary condition of the harm pursuant to s 5D (1) (a) of the Act and that, in the circumstances of the case there was no basis for finding that had the plaintiff proved that had there been markings on the panel she would have heeded them and therefore she had not established causation in fact. 47Alternatively, the defendant submitted that the plaintiff had contributed to her injury by failing to take care for her own safety, and that a finding of 50% apportionment for her contributory negligence was available.

The Plaintiff's Submissions 48The plaintiff submitted that the very wording of the management agreement (Exhibit 1, and in particular the wording contained in Clauses 3.1 and 3.2 thereof) meant that no complete delegation of the defendant's duty of care had taken place. Hayson was contracted merely to assist in the duties outlined and according to Clause 7 of the document, no interference was to be taken by the defendant of the performance of the manager's covenants under the agreement. 49The plaintiff further submitted that Exhibit B provided clear evidence that there were no markings on the Panel 1 and that the court should have no hesitation in accepting as a fact that, at the time of the plaintiff's injury, there were no markings by way of decal, vision line or otherwise on Panel 1. Those photos in Exhibit B were not the subject of any attack by the defendant and were supported by the evidence of the plaintiff, her husband John Wong, and the real estate agent, Mrs Tong. The only evidence to the contrary was that of Mr Mencio, and that his evidence could not be accepted in the face of overwhelming evidence to the contrary. 50The plaintiff submitted that what faced the plaintiff as she was leaving the premises, having completed her work, was "an obvious concealed trap". There was a foreseeable risk of harm, namely, injury by collision with the glass, and that risk was not insignificant. Given the lack of markings on the glass and the lighting conditions, it was submitted that the defendant's breach of duty was clear and that that breach was causative of the plaintiff's injuries. In the circumstances, the plaintiff submitted there could be no basis for a finding of contributory negligence.

Findings 51I make the following findings of fact: 1 I find on the basis of the evidence of the plaintiff, her husband and Mrs Tong, that as at 7 July 2008 there was no decals or vision line on Panel 1 with which the plaintiff collided. Whilst all witnesses in the proceedings were doing their best to assist the Court, I do not accept the evidence of Mr Mencio, called by the defendant, who stated that as at 7 July 2008 there were decals on Panel 1, and that they had been there since "day one". The plaintiff's evidence is supported by the photographs in Exhibit B. 2 I find that despite the absence of any marking on Panel 1 as at 7 July 2008, there were vision lines across both Panel 2 and 3 on that day. 3 I find that the lighting in the defendant's premises, beyond the security doors, was not uniform. The lighting appeared in the photographs in Exhibit C to be spotlighting which provided variable lighting throughout the foyer and passageway. It was described by Mr Jussawalla as being "pretty dim". At the doorway, there was lighting on the door (Panel 2) but not Panels 1 and 3. 4 I find that when the plaintiff arrived at the premises on 7 July 2008, the security door was held open for her and her husband by a third person to allow them to gain access to the foyer. For that reason, her attention was not focussed upon arrival on the security system in place. 5 The plaintiff was therefore unfamiliar with the security door and the glass panels on either side of it at the time when she left UG4 to exit the building. 6 I find that the passageway leading from UG4 took the plaintiff along a curved path directly into Panel 1. 7 I find that notwithstanding that Panel 2 was lit, and the plaintiff also had to pass the green button situated on the wall to the right of Panel 1, the absence of any marking on Panel 1 gave the appearance of an open passageway to the plaintiff as she approached it. 8 I find that a person in the plaintiff's position, taking reasonable care for his or her own safety, would, in the circumstances, not realise that there was a glass barrier across the passageway. 9 The absence of markings on Panel 1 therefore made it a concealed hazard. 10 I find that the very purpose of marking glass panels, and particularly fixed glass panels in walkways in public areas, is to ensure that people do not collide with them and thereby injure themselves. 11 The circumstances here where there was variable lighting, a curved passageway immediately prior to the glass barrier and the person unfamiliar with the security system operating on the door, meant that the plaintiff, or someone in her position, had little opportunity to assess what was in front of them as the plaintiff came around the corner.

52The defendant, as occupier of the premises, had a duty to take reasonable care to avoid a foreseeable risk of injury to persons such as the plaintiff using the premises, and taking care for their own safety (see Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Laresu Pty Ltd v Clark [2010] NSWCA 180, per MacFarlane JA (with whom Tobias JA and Handley AJA agreed) at [38]. His Honour went on to state: "As indicated in the plurality judgment in Thompson v Woolworths (Queensland) Pty Limited (2005) 221 CLR 234, 'the weight to be given to an expectation that the other [person] will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend on the circumstances of the case' (at [35])." 53If Panel 1 had markings on it at the time the defendant took over the building in 2005 in accordance with Mr Jussawalla's evidence, those markings were removed sometime between 2005 and July 2008. Mr Jussawalla stated that he had reported the absence of markings to the builder, however, he could not recall when he did so. It would have been a simple matter for him to put tape across Panel 1. 54The absence of markings on Panel 1 was not a latent defect. The other panels were marked, and whether or not there were decals in place, the vision lines across Panels 2 and 3 were necessary for the safety of people using the security door. I find that the defendant ought to have been aware that there was no vision line or decals on Panel 1 and that the absence of markings on Panel 1 constituted a hazard to persons such as the plaintiff using the premises. 55In the circumstances, I am satisfied that there was, in respect of the absence of markings on Panel 1, a risk of harm to persons using the premises that was foreseeable (s 5B (1) (a) of the Act), that the risk was not insignificant (s 5B (2) (b)), and that a reasonable person in the defendant's position would have taken precautions against such a risk by placing appropriate markings across the glass, including a vision line matching that on Panels 2 and 3, together with decals at a height that persons using the passageway when exiting the building would therefore have been alerted to the presence of the glass panel. 56I am not satisfied that the defendant had completely delegated its obligations to persons using the premises to Hayson, by virtue of the management agreement dated 7 February 2008 (Exhibit 1). The recital to the agreement included the following: "D. The Owners' Corporations wish to appoint the manager to exclusively carry out certain cleaning, maintenance and repair duties on behalf of and at the direction of the Owners Corporations to assist each of the Owners' Corporations in carrying out its responsibility." 57Consistent with that, Clause 3.1 of the agreement provided: "3.1. The Owners' Corporations hereby appoint the Manager as a Caretaker to assist them with the cleaning, caretaking, supervision, security and service and repair of the common property and any personal property vested in the Owners' Corporations and for the general repair, maintenance, renewal or replacement of that property and the Manager hereby accepts the appointment." 58The Manager's responsibilities pursuant to the agreement are set out in Clause 5 and include an obligation to assist the Owners' Corporation to arrange repairs and maintenance of the common property (Clause 5.2 (c)) and at 5(l)(xi) the manager was required to report to the Owners' Corporations "all things requiring repair and all matters creating a hazard or danger and to take remedial action where appropriate and reasonably practical". 59The manager's obligations commenced on 7 February 2008, however I could not be satisfied on the balance of probabilities that there were no markings on the glass Panel 1, only from some time following 7 February 2008 until the plaintiff's injury occurred on 7 July 2008 (see Strong v Woolworths [2012] HCA 5, at [37], by way of analogy). To do so would be speculative. In so finding, I am not making any decision determinative of any issue that may arise to be determined on the Cross-Claim herein. 60Further, I am not satisfied on the evidence before me that the defendant had exercised reasonable skill and care in the selection of Hayson as a manager of the premises so as to completely delegate its duty of care as occupier in the sense referred to by Hodgson JA (with whom Gyles AJA and Nicholas J agreed) in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53], referred to by Mafarlan JA in Laresu Pty Ltd v Clark [2010] NSWCA 180 at [61]. 61The evidence here is deficient as to what occurred before 7 February 2008, other than another related Hayson Corporation was the developer of the premises. Prior to 7 February 2008, the evidence of Mr Mencio was there was no previous management agreement, and that any "building manager" was someone employed by the owners corporation or was someone put there by the developer. 62Mr Jussawalla's evidence that he reported the absence of markings to "the builders" supports an inference that it was not a matter for which Hayson was responsible, and the evidence does not otherwise demonstrate that there was a complete delegation of the defendant's duty of care, so as to avoid liability here. 63Having regard to the matters outlined in s 5B(2) of the Act, I find that in respect of whether a reasonable person in the defendant's position would have taken precautions against the risk of harm to the plaintiff arising from the absence of markings on Panel 1: 1 It was more probable than not that the harm would occur if "care" were not taken, namely, that the panels were not appropriately marked (see Exhibit 3, the Australian Standard in respect of glass installations); 2 The likely seriousness of the harm in respect of glass is manifest; 3 The burden on the defendant of taking precautions to avoid the risk of harm in these circumstances was minimal; and 4 There was no social utility in having unmarked glass creating the risk of harm here. 64I therefore find that the defendant breached its duty of care to the plaintiff and that the negligence of the defendant was a necessary condition of the occurrence of the plaintiff's injury pursuant to s 5D(1)(a). I further find that it is appropriate for the scope of the defendant's liability to extend to the plaintiff (s 5D(1)(b). Applying the "but for" test, the defendant's negligence caused the plaintiff's injuries. I do not accept the defendant's submission set out in para 42 above that there is no basis for finding that had the plaintiff proved there was markings on the panel she would have heeded them. I therefore find the plaintiff has established factual causation.

The Plaintiff's Injuries 65Prior to her injury, the plaintiff's only dental treatment was the removal of her wisdom teeth. She had not had any dental treatment in China prior to her arrival in Australia and no treatment between 1999 and 2008 here. Following the injury she came under the care of Dr Helen Lee, who initially put her tooth back, however, she lost that tooth and then had a temporary denture which lasted one month before it disappeared one day following breakfast. In 2009 she had a temporary mobile denture placed, however, it was not satisfactory in that she could not eat with it. The plaintiff found that she could not speak properly and she also had to cover her mouth whenever she talked or laughed as there was a gap in her teeth. She found that her teeth were sensitive and caused her some discomfort. In August 2009, Dr Leung provided her with a mobile denture. Thereafter, she could talk more freely and open her mouth to laugh, however, eating was still a problem and she could not eat normal foods. 66The plaintiff has subsequently received advice that she should obtain implants, however, these were very expensive and she could not afford them. In May 2011 she travelled to China and had her teeth checked there. She had a ceramic tooth applied, however, she still has difficulty eating some foods. She is troubled by both loose teeth and her missing teeth, but otherwise is not concerned about the appearance of her mouth cosmetically.

The Medical Evidence 67The plaintiff attended Canterbury Hospital following the incident on 7 July 2008 and was referred to her GP and then on to a dentist, Dr S Chan, who examined her on 9 July 2008. On examination, Dr Chan found her central incisor tooth 11 missing and recommended an implant. He referred her to Dr H Lee who reported tooth 21 was missing and incapable of being replaced. Dr Lee found the plaintiff to be suffering generalised chronic moderately advanced periodontitis and she recommended implants at 21 and 11. Dr Lee found that the plaintiff had lost her upper left central tooth as result of impact, and that the upper right central and lateral incisors were loosened by the impact. Those three teeth were to be extracted and she recommended an implant supported bridge, the need for which was, in her opinion, attributable to the injury. 68The plaintiff was referred to a periodontist, Dr P Tseng, who examined her on 19 May 2009. She was referred to Dr Tseng for treatment of her periodontal infection which was unrelated to this incident, but also for management of her missing upper front tooth. Following treatment of her gum infection, her gum condition had improved and her oral hygiene also improved. Dr Tseng recommended an implant supported bridge using two implants for the injured teeth at a total cost of $16,000 plus supervision by way of clinical monitoring for the first 12 months involving three to four visits. In her report dated 9 March 2010, Dr Tseng advised that the implant bridge would be expected to have a life expectancy of at least 15 years or longer. 69The plaintiff was examined by Dr Sandra Short on behalf of the defendant, who provided a report dated 11 October 2011. On examination, Dr Short found the plaintiff to have generalised advanced periodontal disease and that most of her teeth were slightly mobile due to bone loss caused by gum infection. In her opinion, the plaintiff's teeth will last five to ten years. Dr Short was of the opinion that the treatment received by the plaintiff to date had been reasonable, however, the fixed upper bridge would last no more than five years approximately. In her opinion, implants would give a better long-term prognosis, however, she was of the opinion that the implants would have to include most of the claimant's dentition, which would not be covered by this incident.

Damages 70The plaintiff's claim for damages is: Non-Economic Loss 30% $159,000 Past Medical Expenses $10,000 Future Medical Expenses $33,251 Total $202,251

71The defendant submits that the plaintiff, if successful, is entitled to the following damages: Non-Economic Loss 17% $10,400.00 Past Medical Expenses $3,928.90 Total $13,698.90

72It is trite law that the tortfeasor must take the plaintiff as it finds her. Whilst it is not responsible for ongoing treatment caused by the plaintiff's lack of oral hygiene, the defendant is liable for the loss and loosening of the plaintiff's four front teeth and the problems experienced by her subsequent to this accident outlined above. Dr Short has given an opinion that the plaintiff's teeth will last five to ten years, however, in the meantime, she is entitled to appropriate treatment which Dr Lee, Dr Tseng and Dr Short recommend as implant supported bridge work. I allow the sum of $16,750 for the implants as costed by Dr Tseng, together with the cost of dental supervision for twelve months. 73The defendant submits that the plaintiff would not be entitled to future treatment expenses because the loss claimed i.e. the loss of her teeth, would have occurred in any event due to pre-existing periodontal disease. I do not accept that submission, as it lacks any evidentiary basis. 74A schedule was submitted by the defendant demonstrating the dispute as to past treatment expenses, for which the plaintiff had claimed a total of $4,448.80 plus $1,500 for bridge work carried out in China (for which she has no receipt). The plaintiff conceded that her treatment expenses should be discounted modestly for treatment relating to her pre-existing gum disease. I award the sum of $5,500 for her treatment to date. 75For non-economic loss, I take into account the painful injury suffered by the plaintiff, and the discomfort suffered by her ever since, particularly her difficulties eating certain hard foods. I disregard any problems the plaintiff has suffered as a result of her poor oral hygiene. I assess her damages for non-economic loss pursuant to s 16 of the Act as 22% of a most extreme case, which, pursuant to the Table in s 16, equates to 4.5% of the proscribed maximum, or the sum of $23,500. 76I therefore award the following damages: Non-Economic Loss - 22% of a most extreme case $23,500 Past Treatment Expenses $5,500 Future treatment expenses (implants supported by bridgework) $16,000 Clinical supervision for 12 months $750 $16,750 Total $45,750

77Section 5R of the Act provides as follows: "5R Standard of Contributory Negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) The matter is to be determined on the basis of what that person knew or ought to have known at the time." 78Section 5S provides that a Court may determine a reduction of 100% if it thinks it is just and equitable to do so, resulting in a claim of damages being defeated 79 "Principles" referred to in S 5R (1) must, to give that subsection meaning, refer to the principles set out in s 5B and 5C that apply in determining breach of a duty of care. Both at common law and pursuant to s 5R (2) the test of contributory negligence is objective, namely, whether the plaintiff has taken that degree of care for his or own safety that an ordinary reasonable person in his or her position would take - see Smith v Zhang [2012] NSWCA 142 per Meagher JA at [20] where his Honour referred to the judgment of Sackville AJA in Nominal Defendant v Meakes [2012] NSW CA 66. This objective test must be determined before any apportionment is made in accordance with the principles stated in Podrebersek v Australian Iron & Steel Pty Limited 59 ALR 529 at [532]. 80The onus or proving contributory negligence lies on the defendant. In the case of an employee work injury, this onus was said not to have been satisfied where the employee's injury was the product of nothing more than "mere inadvertence, inattention or misjudgment", see Czatyrkov v Edith Cowan University [2005] 79 ALJR 389 at [18]. Here, there was nothing deliberate or intentional in what the plaintiff did. She said that she was looking out for her own safety by looking straight ahead as she walked around the curve in the passageway. It was the lack of any marking on Panel 1, as I have found above, which was causative of her injury. That she did not see, in the short distance and space of time available to her, the metallic door handle and metallic strip on the door in Panel 2, nor the green security button adjacent to the right side of Panel 1, was really tantamount to inadvertence on her part, in circumstances where there appeared to be a clear passageway in front of her. I therefore find that the plaintiff did not contribute, by her own negligence, to her injuries.

Orders 81I make the following Orders: (1) Verdict and Judgment for the Plaintiff in the sum of $45,750.00. (2) The Defendant to pay the Plaintiff's costs. (3) Liberty to the parties to apply on seven days notice in respect of costs. (4) Exhibits to be returned. 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: 07 June 2012

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Judgment (15 paragraphs)

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Cases Cited (6)