SHORT and ANOR v BARRETT

Meagher JA This is an appeal by Dr and Mrs Short (the defendants below) against whom his Honour Callaway AJ awarded a verdict of $294,609.00 in favour of the respondent (the plaintiff below), Mrs Marita Joan Barrett, arising out of the death of her husband, the late John David Macleay Barrett, who died on 3 November, 1982 as a result of injuries which he sustained on 30 October, 1982, when he fell from a balcony at the house of the appellants at 66 Blackbutt Avenue, Pennant Hills.

On that date, 30 October, 1982, the late Mr Barrett, accompanied by his wife and his daughter Caroline, were present at the appellant's house for a surprise birthday party for Dr Short. At about 9.30 pm Mr Barrett and his wife were standing on a timber decked balcony at the rear of the house; Mr Barrett was offered a drink by his daughter, when, at a position about 18 inches from the junction of the eastern and southern parts of the balcony, he leant back slightly on the top plank of the southern side of the balcony, which gave way immediately, causing him to fall to the ground below. The fall rendered him unconscious. He never regained consciousness and later died at the Royal North Shore Hospital.

The appellants had bought the house in about August, 1980. The balcony already existed at the time of purchase. It runs along part of the back of the house and adjoins the sitting room and main bedroom, from which rooms it is clearly visible. It consisted of a timber decked area (of unknown wood) about 25' long and 8' wide. It faced east. It was surrounded by a balustrade consisting of square metal upright posts along its eastern side, to which were bolted two horizontal rails made of western red cedar; at the north and south end of the balcony timber rails of similar dimensions and made of similar materials joined the rails along the eastern side by way of a nailed mitre joint at the corners, and the side rails were in turn nailed to stout oregon wooden timber battens which were affixed to the rear brick wall of the house by plugs.

As will appear from this description, the rails on the front of the balcony (ie the east) were bolted to the metal posts, but the rails on the north and south ends were not so bolted at any point; when these rails met the mitred ends of the eastern rails the fixing was by nails only and at the house end, where they met the oregon batten, the fixing was by means of nails only. At both the point where they met the mitred ends of the eastern rails and at the point where they met the batten, the junction was effected by two nails.

Shortly before Mr Barrett plunged to his death he had leant lightly on the upper rail on the southern end. It gave way immediately, and shortly afterwards the lower rail also gave way. With hindsight it is certainly obvious enough that the cause of the collapse of the upper rail was that the rail had become so affected by the weather that the nails were no longer adequate to secure it at either end.

There was considerable dispute before us as to whether the top rail gave way first at the eastern end or at the western end. His Honour found in favour of the former, but expressed the view that it did not matter greatly. Certainly, a layman would expect this to be the position, since it was at the eastern end that the pressure of Mr Barrett's body was applied. Yet expert evidence of great cogency was given by a Mr Moody to the effect that the plank first gave way at the western end, where it was joined to the batten on the house. He relied on the post accident nail configuration to demonstrate that. He pointed out that the nails on the mitred end were bent and the nails on the batten end were not bent, indicating that the rail initially moved straight out of the oregon batten, whereas if the rail had moved initially at the mitred end the nails at that end would not have been bent but the nails at the batten end would have been bent. His Honour's finding constitutes an implied rejection of this evidence, although it was amply supported by all the photographs in evidence. In his reasons for judgment, his Honour does not even advert to this aspect of Mr Moody's evidence, much less explain why it was rejected. The rejection cannot be explained on the basis of any lack of credibility in Mr Moody; and in my view Mr Moody's evidence on this matter compels acceptance. However, I agree with his Honour that in the end result it is not crucial.

The ultimate question, of course, is whether the collapse of the rails which led to Mr Barrett's death is in law attributable to the negligence of the appellants. His Honour found that it was. His Honour found four "primary facts" established. They are as follows:

"1. The deceased fell to his death when the top rail on the southern end of the balcony came away at the mitred end initially and subsequently at the house end. I find this as a fact on the balance of probabilities but it seems to me not to matter if in fact it came away at the house end first.

2. The attaching of the end rails by way of a nailed mitred joint at one end and by nailing to a fixed batten at the other end was not in accordance with good building practice in that it was obviously inadequate to serve the purpose for which it was intended.

3. The condition of the mitred joint at the north-east end (the end which did not fail) was of a similar appearance and condition to the other end which did fail.

4. It was obvious to any reasonable householder that a fall from this balcony would result in serious injury and probably death."

Having found those "primary facts" his Honour proceeded to divine negligence in the following way:

"1. The height of the balcony above ground level was such as to require at the very least a casual inspection by any reasonable householder having regard to the fact that the balcony was of timber construction and the side rails were significantly longer than the distance between the metal uprights at the front of the balcony.

2. It was obvious even on casual observation that the front rails were bolted to the metal uprights whereas no bolting was evident on the side rails. This being so, in my view a reasonable householder would have been put on enquiry as to how the side rails were attached.

3. Even if not put on enquiry by the obvious absence of the bolts referred to above, a casual inspection of the mitred joint would have disclosed a condition similar to what was seen in photograph F-3 which clearly shows that the joint was weathered, cracked and nailed only.

4. Faced with the above, the reasonable householder would have taken steps to have the side rails bolted to the uprights at the mitred end and firmly attached by bolts or some other means at the house end.

5. Although I have found that the rail failed firstly at the mitred end, a casual observation of the house end would have shown that this rail was only nailed to the batten and this of itself would have indicated thereby its insecurity."

With great respect to his Honour, this analysis is defective.

As far as the findings of "primary fact" are concerned, the first in my view is wrong. The second is dubious: Mr Phillips, a builder, said that it was standard building practice in the 1970's (when the balcony was constructed) to affix side rails in the same manner as was employed in this case; the plaintiff's building expert, a Mr Easton, said he had never experienced it. The credibility of neither witness was attacked, and no firm conclusion was open either way. Nor did the evidence justify the third alleged finding. In this regard, his Honour's reasoning was as follows: there was no photographic evidence of the top railing which gave way; there was, however, a photo of the top railing at the north side when it joined the mitred end of the eastern railing; that photo showed that even to the eye of the casual observer, the plank was "weathered and cracked in such a way as to suppose that it could be unsafe"; and there was no reason to suppose that the southern top plank was in any different state from that of its northern counterpart. At almost no point can this reasoning be sustained. Although his Honour was misled by the oral evidence in this regard, the photographs which are exhibits 1(11) and 1(13) are photographs of the top southern plank at the batten end and the mitred end respectively, and they on examination show no obvious signs of weathering or cracking. In the second place, it is difficult to say what the photo of the end of the northern top plank demonstrates.

It is not evident that it testifies to obvious weathering and cracking. Moreover, his Honour seemed to rely on his own interpretation of the photo. In this respect he overlooked the sage advice by Lord Reid in C Van der Lely NV v Bamfords Ltd (1963) RPC 61 at 71: "But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be most worthy of acceptance." Further, it is not clear that a casual observer would even have seen the portion of the northern top rail shown on the photo. It is not a photo of that part of the rail which would be visible from the inside of the balcony; it is a photo of that part of the rail which faced out on the garden, ie the external face of the rail. In the third place, common experience demonstrates that one cannot logically say that because one plank of a structure is deficient another plank must be. In the fourth place, his Honour's mistaken view that the plank on which Mr Barrett leant must have initially given way at its eastern extremity probably led him to place undue emphasis on the condition of the parallel northern plank at the same point. And, finally, it disregards the uncontradicted evidence of the appellants as to what they in fact observed about the balcony.

Of the appellants, Dr Short was a medical practitioner, and Mrs Short was a primary school teacher.

Neither was a tradesman, and neither was a skilled house handyman. Neither had anything to do with the building of either the house or the balcony. Neither understood carpentry or similar matters. Neither had actual knowledge of how the balcony was constructed, or of whether nails or bolts had been employed at its several junctions. It had never occurred to either of them that any part of the balcony might be unsafe.

It must be, and was, conceded that both Dr and Mrs Short knew that: the purpose of railings around a balcony is not cosmetic but to prevent people falling off; if anyone did fall he would sustain serious and possibly fatal consequences; and, in a general sense, timber deteriorates when exposed to weather. It must also, I think, be conceded that if a person were minded to undertake the task of ascertaining whether the junctions were affixed by bolts or nails he could have discovered that fact; however, no occasion ever arose for essaying this task. In my view, a householder in the position of Dr or Mrs Short is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they either actually know it is unsafe or else receive a warning that it may be unsafe. Here there was no warning. Indeed, so far from there being any warning of its lack of safety, Dr Short, acting on the assumption that the nails were secure, was in the habit of leaning over the very rail which collapsed for the purpose of cleaning the gutters below.

It is perfectly true that, some time earlier, Dr Short noticed that the paintwork on the floor of the decking had become worn, and repainted it. That was done for cosmetic reasons. However, one does not know that the flooring was built of the same wood as the side railings, and certainly cannot infer that it was. Nor can one infer that knowledge that the floor planks needed repainting should have alerted him to assume that the railings might be unsafe.

Similarly, in my view his Honour's findings as to what should have been obvious to a casual observer on inspection lack conviction in the absence of any evidence that any occasion for such an inspection ever arose.

For these reasons I am of the view that the following orders should be made:

3. In lieu thereof, judgment be entered for the defendants.

4. Order that the respondent pay the costs of the appellants both at trial and on appeal.

5. Order that the respondent have a Certificate under the Suitors' Fund Act.

In lieu thereof, judgment be entered for the defendants.

Order that the respondent pay the costs of the appellants both at trial and on appeal.

5. Order that the respondent have a Certificate under the Suitors' Fund Act.

Counsel for the appellant: M Ireland QC with A C Bridge and J McGillicuddy Solicitors for the appellant: Audrey Lee, Solicitor for the GIO

Counsel for the respondent: B Gross QC with Ms C Rimmer

Solicitors for the respondent: G J Sharah Henville & Co