54 Thirdly, and in furtherance of the views expressed above, subsection (3) provides an exception and, in my opinion, the only exception to the absolute and unconditional duties imposed by subsections (1) and (2). It requires the owners corporation by special resolution to determine that it is inappropriate, for instance, to renew or replace a particular item of property provided that that decision not to renew or replace that item will not affect the safety of the building or the common property. In my opinion, the word "inappropriate" is sufficiently broad to cover a situation where any such renewal or replacement is unnecessary provided that the safety of the item is not compromised.
55 It follows in my opinion, that the obligations imposed upon the respondent by s 62(1) and (2) of the Act must be taken to have informed the standard of care reasonably required of it as an owners corporation with respect to its management and control of the use of the common property: s 61(1)(a). To discharge that standard of care the respondent was required to inspect from time to time the common property including its fixtures and fittings for the purpose of, inter alia, replacing any item thereof which it was appropriate to replace in the sense referred to above. The statutory regime, given the terms of s 62(3) in particular, required an owners corporation to be proactive and not, as the primary judge found the respondent to be in this case, merely reactive. It could not escape its statutory obligations by simply hiding its head in the sand.
56 Accordingly, and relevantly to the facts of the present case, s 62(2) of the Act obligated the respondent to replace the ordinary annealed glass panes in the front doors unless, by special resolution, it determined that it was inappropriate to do so and that its determination not to do so would not affect the safety of that item of property. As no such resolution had been passed by the respondent, it was in continuous breach of its statutory duty to those who were injured as a consequence of failure to replace that glass.
57 It also follows from the nature of the obligation under s 62(2) and the conditions set out in subsection (3), which inform an owners corporation's determination not to carry out that obligation, that the owners corporation must from time to time (depending upon the circumstances and the nature of the fixture or fitting in question) inspect the same for the purpose of determining whether it is inappropriate to renew or replace it without affecting any relevant question of safety. As I have observed above, there can be no doubt, in my view, that the statutory objective of s 62(1) and (2) is to require an owners corporation to adopt a proactive approach to the maintenance and repair of its property rather than a reactive approach. In the present case, the primary judge expressly found (at [36]) that the respondent had adopted the latter rather than the former approach.
58 On my construction of s 62, and as I have said, it must follow that the failure of the respondent to have at any time inspected and replaced the glass panels in the front doors constituted a breach of its statutory obligation to replace that glass pursuant to s 62(2) in the absence of a special resolution in terms of s 62(3). That it would not have been open for such a resolution to have been passed also follows, in my opinion, from the obviously dangerous nature of the glass panels, their propensity to shatter into ragged shards when impacted upon and the necessity as a matter of safety to replace them with safety glass in accordance with the Australian Standard current at the time of any such inspection.
59 Similarly, under s 62(1) the proper maintenance of the front doors required them to be inspected to ensure that they operated in a safe manner. In the present case, they did not. The door in question had a closing device that would, from time to time, cause the door after opening to close quickly with the consequence that a manoeuvre such as that executed by the appellant would cause an impact upon the glass which, given its propensity to shatter, gave rise to the foreseeable risk of it shattering and causing severe injury (as in fact happened).
60 The respondent's response asserted, as the primary judge found, that it had no actual awareness of any danger with regard to the glass given, in particular, that no previous problems with it had been encountered. In my opinion that is no answer to its statutory obligations which required the respondent to engage such experts as were necessary to enable it to meet those obligations. In the present case, the respondent had engaged D M Scott as its strata managing agent, which it was empowered to do pursuant to s 26 of the Act.
61 There is no evidence as to which, if any, of its functions the respondent delegated to D M Scott pursuant to s 28(1) of the Act. If it did delegate its functions under s 62, then it is clear that D M Scott did not perform them. If it did not, then it was still open to the respondent to seek D M Scott's advice with respect to the performance of those functions. After all, it is apparent from D M Scott's letter to the respondent of 14 December 1999 that it had been asked by the respondent to make an assessment of the building for the purpose of carrying out maintenance works. It can be inferred from the letter that D M Scott was only asked to assess "the most urgent maintenance work required". Such a request was, in my opinion, insufficient to fulfil the respondent's duties under s 62. A modicum of thought with respect to any inspection of the glass panes of the front doors would have made the inspector realise that the glass in those doors had been inserted when the building was erected in 1939 and not replaced since.
62 Further, it is appropriate to infer that an enquiry of a licensed and experienced managing agent would have resulted in the respondent being advised that that glass was not safety glass and that, due to the risk of it shattering if impacted, it should be replaced by safety glass in accordance with the current Australian Standard.
63 Accordingly, I would disagree with the primary judge's finding (at [36]) that s 62 did not call for regular inspections of the common property over and above the general obligation to keep the common property in a satisfactory state of repair. Furthermore, the fact that there was no evidence to suggest that there was any factor that should have led the respondent to have had the doors inspected by a glazier is no answer to what I consider to be its statutory obligation to carry out from time to time such inspections as were necessary to enable the respondent to determine whether it was appropriate for it to pass a special resolution pursuant to s 62(3). Absent such a resolution, it neglected its obligation to replace the glass panes of the front door which, had they been inspected by the an appropriately experienced person, would have been the subject of a recommendation that what was known to be the original ordinary annealed glass be replaced with safety glass.
64 Although the primary judge found that there was no evidence as to whether or not an expert glazier would have recommended replacement of the glass, such a finding was contrary to the practice of replacing ordinary annealed glass with safety glass where replacement was called for as, in my opinion, it was in the present case given the extensive use to which the entry doors were subjected: cf Francis v Lewis [2003] NSWCA 152 at [57]-[59] per Mason P with whom Hodgson JA and myself agreed.
65 The fact that the respondent was, in my opinion, in breach of its obligation under s 62(2) to replace the glass of the front doors (and particularly the right hand door which was the main entry door on which the lock and door closure device were located) does not mean that it was also in breach of its common law duty of care. Whether it was or not requires the application of the Shirt calculus.
66 In [50] above, I expressed the view that what was "appropriate" to require replacement of a fixture or fitting for the purpose of complying with s 62(2) did not require the relevant item to be either broken or patently defective in the sense that its replacement was needed or necessary for that reason. Nevertheless, replacement of a fixture or fitting may be needed or necessary not only because it is broken or patently defective but also because the risk of injury is reasonably foreseeable in the Shirt sense (that is, it is neither far-fetched nor fanciful) unless the item is replaced.
67 Thus to adopt and adapt the language of the Shirt calculus to the present case, a reasonable owners corporation in the position of the respondent would have foreseen that its failure to replace at least the right hand glass panel in the front door of the building with safety glass involved a risk of injury to those persons, including the appellant, who might, even inadvertently, push upon the glass to prevent the door from closing.
68 The reasonable owners corporation's response to that risk required consideration of the serious injuries which could result from the shattering of the glass pane and the relatively minor expense of replacing it as in fact was the case (see [24] above). On the other hand, the degree of probability of its occurrence may not be high given that there had been no similar incident in the past. Nevertheless, one could fairly say that it was an accident waiting to happen when one takes into account the problem with the door closing device (see [20] above) and the lack of utility of the push-bar and its categorisation by the primary judge that its purpose was only decorative (see [19] above).
69 When one adds into the balance the mandatory requirements of s 62(2) and the emphasis on safety reflected in s 62(3)(b), the balancing exercise called for by the Shirt calculus in my opinion tilts positively in favour of a response by the reasonable owners corporation in the position of the respondent which required the replacement of at least the right-hand glass pane of the front door with safety glass.
70 However, the respondent sought solace in the following passage from the judgment of Gleeson CJ in Jones v Bartlett where (at 176 [19]) his Honour said:
"Implicit in the proposition that reasonable care required that there should have been an expert assessment is the idea that all features of the premises potentially capable of harming someone who came onto the premises, or, at least, the prospective tenants and members of their households, should have been the subject of expert assessment. The glass door had been there for 30 years without causing any harm. It was an ordinary door, constructed in accordance with building practice and standards at the time when the house was built. There was no reason why it should have been the focus of special attention."
71 In the passage referred to, the Chief Justice was concerned with a case where the adult son of the tenants of a house sustained injuries when he accidentally walked into an internal glass door. The door complied with the legal standard applicable at the time of its construction although it was not safety glass as would have been required had the door been installed after 1973. The injured son sued the landlords for, inter alia, a breach of their common law duty of care. The High Court held that the landlords were not in breach of that duty.
72 There are a number of differences between that case and the present. Firstly, the landlords were not bound by a provision such as s 62 of the Act. They were bound by the Occupiers' Liability Act 1985 of Western Australia, which did not impose upon the landlords any greater duty of care to maintain and repair the demised premises than existed under the general common law with respect to occupiers of property. That Act expressly provided that the relevant standard of care was that which was reasonable. Secondly, the High Court was dealing with a domestic dwelling and an internal glass door. In the present case this Court is dealing with an apartment block in respect of which there was a deal of traffic in and out of what was a front (and not an internal) door.
73 But most importantly, in Jones v Bartlett there was no reason to focus special attention on the door, as it had existed for 30 years without causing any harm. It is true that in the present case the same observation might be made, but the difference is the statutory and intractable obligation upon the respondent to renew or replace fixtures or fittings such as the front door for which purpose it was required from time to time to inspect it and all other fixtures and fittings comprising the common property, at least where it was reasonably foreseeable that a safety issue might arise.
74 But the Chief Justice also said this (at 177 [23]):
"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 costs, 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 in reflects common sense." (emphasis added)
75 In my opinion, the reason the glass had to be replaced in the front door of the building was because, subject to the passing of a special resolution pursuant to s 62(3), s 62(2) mandated its replacement. That is the critical difference between this case and Jones v Bartlett.
76 McHugh J dissented. However, at 197 [110], his Honour made observations which I consider applicable to the present case:
"I do not think that it is a relevant answer to the appellant's case that the Australian Standards merely recommended that, for houses built before 1973, glass to the required standard should be installed in doors only after the glass needed to be replaced. The Standards are of general application. They are a guide to, but they cannot dictate, the standard of reasonable care required in the circumstances of individual cases. This door was located in the main access way between the inside and the outside of premises let for rental. In determining what reasonable care required, the consequence of inadvertence or thoughtlessness on the part of the residents was a variable factor which must be taken into account by the landlords. It carried a risk of injury to the careless or inadvertent resident but a reasonable person, conscious of the risk, would not ignore." (emphasis in original)