Swift v Wearing-Smith

Judgment

1. MEAGHER JA: I agree with Hoeben JA that this appeal should be allowed. For the following reasons and those given by his Honour, I consider the primary judge erred in his findings as to breach and as to the mechanism of failure of the balustrade. What follows assumes a familiarity with the factual background and evidence at trial as summarised by Hoeben JA.
2. The primary judge held that in the circumstances which followed their receipt of the 2002 building inspection report, the exercise of reasonable care by the appellant home owners required that they take "advice and action to ensure the structural soundness of the balustrade before allowing guests to be in close proximity" to it: Judgment at [156], [159]. His Honour concluded that the fact that work had been carried out in 2006 by a painter "without structural qualifications of any kind" and "without any consideration of the state of the component parts of the supporting structures" ought to have raised in the minds of the appellants the question whether the rust identified in 2002 had been "adequately addressed from a structural and safety viewpoint": Judgment at [153], [171]-175].
3. In so concluding his Honour reasoned as follows: in 2002 the appellants were advised of the presence of rust in the steel components of the balustrade; that rust problem remained unaddressed until 2006 when Mr Mesker chipped scaled rust from the poles and lugs, applied rust converter, and then painted those structures; at that time the appellants took no active steps to satisfy themselves of the structural safety of the balustrade and its supporting components, and could not reasonably have assumed that the work undertaken by Mr Mesker, a painter, had the effect of ensuring the structural soundness of the areas he had treated or that he would have identified any structural problems in the balustrade if they existed. In particular, he was not in a position to determine whether the mounting bolts holding the glass in place were corroded: see Judgment at [145]-[162], [171]-[175].
4. The mounting bolts holding the glass panel in place assumed particular significance, because the primary judge found that it was one or more of those four bolts which had failed due to corrosion: Judgment at [130], [131].
5. In my view the primary judge's conclusion that the appellants, acting reasonably, would have appreciated as a result of the 2002 inspection report that there was an underlying problem of rust in the steel components of the balustrade which remained unaddressed after the works undertaken by Mr Mesker in 2006, was not justified by the evidence or a consideration of what a reasonable person in the appellants' position would have done in response to that report.
6. The report described the "metal lugs and posts" of the balustrade as having "some corrosion" and recommended "rust proofing and repainting" or "simply replacing". It did not, in terms or implicitly, recommend that the appellants also seek further advice from someone (other than a painter or rust proofer) as to the structural soundness of the component parts of the balustrade. The description of the corrosion was not such as to indicate that there was a need for such advice. By way of contrast, express advice to that effect was given in other parts of the report concerning items or sources of damage in respect of which it was considered that there should be an inspection by the council, a qualified engineer or a tradesperson with particular qualifications or experience. Nor did the report say that the balustrade was not or may not have been structurally sound at that time, or that it might become unsafe even if the work recommended was undertaken.
7. In those circumstances there is no apparent basis for the primary judge's conclusions that "in 2002, and thereafter, a reasonable person in the position of the [appellants] would have taken precautions by taking advice and action to ensure the structural soundness of the balustrade" beyond what was recommended by the report and that the appellants had been advised of the need for the balcony to be "appropriately treated", it being suggested that the appropriate treatment extended beyond what was described in the report: Judgment at [156], [173]. It is correct, as the primary judge records at [157], that from 2002 the appellants were on notice that "proper remedial treatment of rusted components" was recommended. However that treatment did not extend beyond "rust proofing and repainting".
8. In 2006 the appellants engaged Mr Mesker to undertake work which answered the description of that which was recommended in the inspection report, albeit some three years after the recommendation was made. It was not suggested that he was not qualified to undertake the work described, or that he said as much to the appellants. On the contrary, his Specification and Tender dated 5 March 2006 described the rust proofing and repainting that he proposed to undertake in terms which might have given the appellants some confidence as to his ability to carry out the work properly.
9. The primary judge considered that it was not sufficient for the appellants to rely on Mr Mesker to identify any structural or safety issues arising from the condition of the balustrade: Judgment at [148]. That observation is not to the point and, in any event, is contradicted at least to some extent by Mr Burn's evidence. Mr Mesker was retained to undertake the work described in the inspection report. Mr Burn considered that a prudent painter in his position, who considered that a more thorough structural assessment was required, was likely to have raised the matter with the home owner. From the appellants' perspective they might reasonably have proceeded on the basis that if the painter had observed something which he believed required further assessment or work, he would have raised that fact with them.
10. That did not occur. Mr Mesker, who the primary judge accepted as a witness of truth, gave the following evidence: From memory, the glass was held in with two tabs or four tabs top and bottom, and those tabs were holding the glass in between the two posts, and we checked for rust there. There was no rust there. So we didn't have to take the glass out or dismantle any glass, left the glass totally as it was.
11. There was no reason following the completion of Mr Mesker's work, for the appellants, acting reasonably, to believe that any further structural assessment of the balustrade was required. To the extent that a defect had been identified, that defect had been addressed in one of the ways recommended and the tradesperson who had been engaged to that end did not suggest that he thought that any further work was required to make the structure safe.
12. I also agree with Hoeben JA's reasoning and conclusion that the primary judge erred in finding the mechanism of failure of the glass panel was as suggested by Mr Burn (being the finding referred to in [4] above). Finally, I agree with Hoeben JA that the respondent's application to rely upon his notice of contention should be refused.
13. HOEBEN JA: Nature of proceedings The respondent and the appellants are related by marriage - the respondent is the stepfather of Kim Swift, the second appellant. The respondent was injured when he fell from a balcony at the rear of domestic premises owned by the appellants at Turramurra on 5 November 2011. He suffered significant injuries to his chest and thoracic spine. Damages were agreed at $425,000.
14. The house, where the accident occurred, was built in 1952 and the appellants moved into the premises in February 2003. It was their place of residence. The balcony was about three metres above ground level and had glass panels around it. The balcony was constructed before 1992. The accident occurred when a glass panel gave way and the respondent fell to the ground.
15. The respondent brought proceedings against the appellants in the District Court alleging that they were negligent in allowing him access to the balcony when they knew that the supports for the balcony were dangerously corroded, failed to warn him of that fact, failed to inspect the balcony and failed to rectify the corrosion of the metal lugs and posts. The proceedings were heard by Levy SC DCJ (the primary judge) on 11 - 13 August 2014, with judgment delivered on 9 October 2014. The respondent was successful in his claim.
16. The appellants have appealed against the primary judge's finding of negligence against them. Factual background and evidence at trial The state of the premises at the time of the accident
17. The appellants commissioned a pre-purchase report in 2002 before buying the premises. The report was received in December 2002 and signed by a master builder. Of its 28 pages, 20 related to the house and pool, and the balance was a pest inspection report. The format of the report was to identify various aspects of the structures on the property and to comment on them, e.g. roof external/roof internal, external walls, footings, foundations, balcony, handrails, pool, each room.
18. By way of an executive summary, there were two pages headed "Issues" and "Safety Concerns". Under the heading "Issues" were the following matters - extensive termite damage, with a recommendation that this be treated, concrete cancer in the slab of the garage, with a recommendation that this be inspected, corrosion to the base of the water heater requiring its replacement, failure of the pool to comply with the safety code, with a recommendation for a Council inspection, damp in the wall of the rumpus room, with a recommendation for a damp course, covered edges of the concrete slab, with a recommendation that this be remedied.
19. Under the heading "Safety Concerns" the following matters were listed. The pool fence was decayed and did not comply with the Council code. The electrical wiring was faulty, with a recommendation that a licensed electrical contractor inspect and remedy faulty or illegal electrical wiring. The paths were identified as constituting a slip hazard. The water heater had been incorrectly installed so that the control valve might malfunction and injury occur. There were no safety glass stickers on glass panes below one metre, e.g. on shower screens, windows, doors, built-in wardrobe doors there should be safety glass. The comment was "this is considered to be serious, have a glazier inspect the glass and upgrade as soon as practicable" (Blue 9K). Floor surfaces were identified as possibly being "slippery" when wet, with a recommendation that anti-slip material be placed on them.
20. In another part of the report, the following comment and recommendations were made in relation to the balcony and handrails: "Balcony: The concrete roof slab edges have concrete cancer and spalling render, the lower walls have extensive vegetation cover, remove the vegetation and fully inspect the left elevation slab edges and supporting walls defects may exist. The concrete/tiled surfaces have inadequate expansion joints, provide expansion joints at 4.5 metre centres cracking may occur. The masonry walls above garage have severe cracks, have engineer inspect and advise. Handrails: The glass handrails have no safety glass stickers on the glass panels, have a glazier inspect the glass and upgrade as required. The metal lugs and posts have some corrosion. We recommend rustproofing and repainting or simply replacing." (Blue 13J-L)
21. Ms Swift, gave evidence that she would have read the pre-purchase building report at the time she and her husband were purchasing the property, but she did not specifically recall its content. She recalled retaining painters to do work on the house, approximately three years after they moved in. She said: "A. They painted all the exterior woodwork of the house and also all the steel poles supporting the glass panels forming the pool fence and the upstairs balustrade." (Black 82T) When asked about staining on the paintwork of the balustrade she said: "A. The poles were steel, not stainless steel, and they had surface rust. Alex took the rust off and rustproofed it and repainted them in a charcoal colour."
22. In cross-examination, her evidence concerning the painting in 2006 was: "Q. … The balustrade painting that happened in 2006. Mr Mesker came along and did some painting, you told us about. A. I would have been there partly during the day. I mean, I was working school hours - 9.00 till 3.00 - then, so Alex would usually turn up about 7.00 and do some work, and be tidying up by the time I got home. But I would have witnessed some of it, yeah. Q. Would you say he painted the steel stanchions themselves because they had discoloured? A. They had surface rust on them, yeah. And I'm not sure how he did it, if he burnt it back, if he just I think rubbed it back and treated it with rust proofing. I mean, that was what he said he was doing in the quote, and he's done work for us before, and I've always had faith in him doing what he said he would do. … Q. It was cosmetic, what he was doing? A. There wasn't rust through that it needed replacing. It was only surface rust, yeah." (Black 86Q - 87C)
23. Ms Swift gave evidence that in about 2010 more work was done on the property. "A. I don't remember what year it was, to be honest, but we had Peter Livingstone from Abbey Fencing come out, and he quoted on replacing the glass fencing around the pool and also on doing a new glass balustrade upstairs. We ended up just going with the pool fencing and left the glass upstairs." (Black 83C - D)
24. Ms Swift said that she was otherwise unaware of any issue with the glass balustrade on the deck. She and her husband would frequently entertain on the deck, having family gatherings, people over for barbeques and a couple of parties, including New Years Eve parties.
25. The person who carried out the painting in 2006 was Mr A Mesker. The quote which he provided for the work was dated 5 March 2006 and he appears to have signed it on 10 March 2006. Included in the quote was the following: "METALWORK: To be scraped free of rust scale and flaking paint. Rust affected areas to be treated with a proprietary rust inhibitor and allowed to react, washed off and treated areas to be coated with Taubmans All Metal Primer and two final coats of White Knight Epoxy Metal Enamel or equivalent quality in colours to be determined." (Blue 57L)
26. Following the accident, the balustrade was replaced. Ms Swift's evidence was: "A. Yeah. I think a week. I don't remember when, but I did ring Peter Livingstone of Abbey Fencing again, and asked him to come out and quote on replacing it. Q. Then what happened with respect to that quote? A. We got the quote and sorted out the money to pay for it, and placed an order and I think it -I don't remember exactly when it was installed, but it was a few weeks later that we had it replaced with similar fencing to what we had around the pool, because we couldn't afford to go for the glass look again, and we didn't want to live with a missing panel of glass. You know, there was a safety risk to anyone, including our pet dog, you know." (Black 84T - B) Q. Prior to this incident, had you had any concern about the balustrade on the deck? A. No." (Black 85D)
27. Mr Mesker gave evidence that he recalled doing painting work at the premises in early 2006. His evidence was: "A. Yes, I think it was to attend to the pool fence, from memory, and - so the metal work around the pool fence and the balustrade, from memory. Q. Was that up on the deck? A. I think so. And I think it was also to wash down mould-affected areas and also then to touch up areas that were bare. So it was more to rectify anything that was not good. Q. To that extent, did you or your painting team paint the metal work on the balustrade of the deck? A. Yes. Q. Do you recall what your standard process was for metal work as at that time? A. And today - as it is today, the metal is hammered or chipped with a little chip hammer to remove scale - rough scale. Then, once that's clean or de-scaled, we use a proprietary rust converter which converts the rust to an inert steel. Once that's done, we apply an oil-based primer which excludes oxygen, and then we finish with an oil-based coat of paint over the final coat, yeah. … HIS HONOUR: Q. When you say everything was painted in situ, if there was an assembled part, you didn't disassemble it in order to treat it in any way? A. No. No, because it's too dangerous with some of these things. You can run the risk of having glass drop out, and there was no need for that because there was no evidence of any rust at that point. From memory, the glass was held in with two tabs or four tabs top and bottom, and those tabs were holding the glass in between the two posts, and we checked for rust there. There was no rust there. So we didn't have to take the glass out or dismantle any glass, left the glass totally as it was." (Black 120U - 121N)
28. The first appellant, Mr Swift, gave evidence that he remembered reading the pre-purchase report and that he made some notes on the front of the document. He said that the arrangements to paint the balustrade and other parts of the property were made between his wife and the painter and he played no part in them. He said that after 2006 when the balustrade was painted, he did not notice any staining on the poles.
29. Mr Livingstone was a fencing salesman, who attended the premises in 2010, to inspect the pool fence and quote for its replacement. At the same time he inspected the balustrade. He was asked to give an estimate of the potential cost to replace the existing tinted glass of the balustrade with clear glass. In a statement dated 8 July 2014 he set out his observation of the glass panels, which formed the balustrade: " … It was typical of the glass used in the earlier balustrades, i.e. two sections of glass compressed and glued together to form a minimum thickness of 8 or 10 mm and generally referred to as "safety glass"." (Blue 59P - Q) "As mentioned the section of the glass presented is very consistent with the product used in the earlier balustrades, i.e. two sheets of laminate glass compressed and "glued" together to create the thickness required - referred to loosely as safety glass. Present day glass is now one piece only (10 or 12 mm depending on the configuration) and the glass goes through what is called a "toughened" process; one of the critical differences pertains to how the glass shatters to minimise severe cuts." (Blue 60R - S)
30. He set out his observations of the structure of the balustrade as follows: "3.2 The balustrade consisted of a post with two separate welded flat plate side flanges on each side of the post and each flange had a hole through it, the glass also had holes suitably located to enable a bolt/nut to secure the glass to the flanges. 3.3 A closer inspection revealed the post/flange structure was not a typical "off the shelf" standard product but in fact had been constructed diy; however, such construction appeared to be very sound. Due to the finishing tile/slate around the base of the posts I was not able to readily identify how the posts were affixed to the concrete base of the balcony; however, when side pressure was applied to the posts, they appeared to be well anchored. 3.4 The posts appeared to me in good working order, with no apparent sign of rust or any other form deterioration; there were no other immediate signs of structural shortfall with the balustrade." (Blue 59S - 60G)
31. In his oral evidence, Mr Livingstone said in relation to the posts and flanges: "Q. Just on that issue, in answer to a question from my friend, you said words to the effect of the front and back plates were in place. All right? A. Yes. Q. When you say that, could you just describe to his Honour what you meant by that observation? A. So on the post is welded a front and back plate in which a bolt would go through that plate to hold the glass in position. That front and back plate were in place and, as I thought I recalled, there was a bolt holding those - that bolt was still in place as well." (Black 81P - T)
32. I infer from that evidence (which was the only direct evidence on the subject) that each steel post had flanges (or lugs) welded to them. On the side of each post, attached to the welded flanges by bolts, were sheets of glass which were sandwiched between the two flanges at each point. This is consistent with the blurred photograph of the balustrade before the accident (Blue 52).
33. Mr Livingstone explained what happened as a result of his inspection of the balustrade in 2010 as follows: "With consideration to the finished height of the existing balustrade (approx. 900 mm) inability to affix a safety top rail and the unknown integrity of the posts I advised Ms Swift that whilst replacement of the glass only was possible/acceptable that I, personally, was not willing to commit to such as it would fall short of the requirement now in existence for all new balustrades. Ms Swift understood my approach and indicated that she and her husband would take it under advisement; I believe that there were a number of other items that needed attention - it was a matter of priority." (Blue 60B - D)
34. In oral evidence, Mr Livingstone said that in 2010 the glass on the balustrade appeared "okay" to him. He tested the posts of the balustrade, but not the glass (Black 74L - T). The advice which he gave to Ms Swift was: "A. Ms Swift asked me if we replace the glass with clear glass. I had a look at the overall structure, and even though it complied to the rules, probably in the time that fence was built, it wasn't in accordance with the new rules. I wasn't willing to put in or replace that glass. I told her that I would prefer to see a new balustrade in place. … A. As I understand, if you replace only a damaged sheet of glass, you only have to comply with the rules that stood at the time in which that fence or balustrade was put in place. But if there was going to be major structural change to a residence, then we'd have to comply to the new rules. Q. But your advice was to replace the whole thing, wasn't it? A. I said that I wasn't willing to use the existing system that was in place From my viewpoint, I'd feel much more comfortable that a normal standard balustrade, 1 metre high with rail system, be put in place. Q. That was because operating on your mind was safety of people on that verandah, correct? A. Yes." (Black 75E - F, 75T - 76C) Mr Livingstone said that when he saw the balustrade in 2010 he did not think that it was unsafe (Black 75M).
35. Within a week following the accident, Mr Livingstone was asked to attend at the premises by Ms Swift and to provide a quote. His evidence in his statement as to what he observed on that occasion was: "4.2 There was no immediate or apparent damage to the balustrade. 4.3 The only evidence of some potential mishap was the absence of 1 sheet of glass. 4.4 The posts and flanges to which the glass would have been affixed appeared to still be sound in good working order." (Blue 60L - N)
36. In oral evidence he said: "A. My recollection is I had a look at the particular site where the glass was missing. I was interested to see why the accident might have happened. The posts were in good order, the brackets were in the order. All the brackets and bolts were in order. The only thing that was missing was the glass. HIS HONOUR: Q. What do you mean by "in order"? A. There was no damage to the post, no damage to the brackets, no indication that they had given in any particular way. Q. And the bolts were present? A. Bolts present." (Black 72K - S)
37. When the evidence as to the bolts was tested under cross-examination, Mr Livingstone gave the following evidence: "A. It's about why - I had a look at the structure, and to my mind everything was in place, and the question I had to ask myself, "Why was it in place?" it's because the front and back plates were there, and a bolt would have been in place to hold that in place. Q. A bolt would have been in place to hold that in place. Is that what you say? A. Yes. Q. You're guessing, aren't you? A. Possibly. Q. You could be mistaken. A. Could be mistaken. HIS HONOUR Q. Does that answer mean that the bolts weren't actually visible to you at the time of the inspection? A. The only way that the back plate would have been held in place would have been for a bolt to be there. Q. But you didn't see the bolt? A. I don't specifically recall. Q. In your evidence earlier today you said that the bolts were - I don't remember the exact word - either in place or unaffected. Do you recall that evidence? A. Yes, I do. Q. Was that correct? A. At the time of the question, yes. Q. Well, how do you reconcile the difference? A. As far as I'm concerned, those bolts were in place. HUGHES: Q. But you have no memory of seeing them in place. A. No." (Black 80T - 81N)
38. Mr Burn, a civil engineer, gave evidence on behalf of the respondent. His evidence comprised two reports, dated 25 November 2013 and 8 July 2014, together with oral evidence. While objection was initially taken to some parts of the reports, they eventually were received by the court without objection.
39. When preparing his first report, Mr Burn did not perform a site inspection, did not inspect the component parts of the balustrade and was not provided with any photographs. He did have available the pre-purchase report obtained by the appellants. From that he noted "metal lugs and posts used to secure the handrails had visible corrosion with recommendation to rust proof and repaint and/or replace the fixings". For the purposes of his report, he made an assumption that the handrail fastenings did not receive any attention between the date of the report and the date of the injury.
40. On the basis of that material, and by reference to other instances which he had observed of the failure of a balcony handrail, Mr Burn concluded that inadequate handrail maintenance had caused the accident. He opined that what should have happened was for there to be a periodic inspection of handrails to determine if there were any inherent movement, the degree of movement and whether the handrail could be re-secured by tightening the existing fixtures. If the fixtures had corroded, they would have to be properly inspected, which would involve disassembling the fixture.
41. In between the first report and the second report, Mr Burn became aware that painting of the balustrade had taken place in March of 2006. He assumed that no other maintenance had taken place between February 2003 and March 2006. On the assumption that painting of the balustrade had taken place, Mr Burn said: "It is possible had the painting work been carried out in 2006 as originally proposed in the March 2006 quotation that the corrosion of the brackets securing the handrail may have been held at a stage that would have retained sufficient strength to prevent the subsequent failure in November 2011 by having prevented further corrosion occurring between 2006 and 2011." (Blue 45M - N)
42. Mr Burn made the following observations concerning the painter: "It is unlikely the painter has structural qualifications. However based on the painter's likely prior experience observations by the painter when cleaning and preparing for the handrails for painting (assuming the painting work included the painting of the handrails) should have seen the degraded state of the brackets and lugs. A prudent painter having observed the state of the metal brackets and lugs after cleaning away the rust and other corrosion would have raised the condition of the handrail with the property owner suggesting a structural assessment be conducted before the metalwork was primed and painted. No material has been briefed to indicate whether this occurred." (Blue 45Q - T) "Had the work quoted in 2006 been carried out in 2006 the continued corrosion of the handrail and its fixtures may have been arrested at a condition that could have prevented the 2011 collapse." (Blue 46P)
43. Mr Burn expressed an opinion as to the possible effect on the glass of the balustrade when somebody forcefully came in contact with it. "Normally it would be expected when glass is used as a balustrade or handrail treatment the type of glass would be substantial enough to withstand the specified loading under relevant ordinances and Australian Standards (e.g. the SAA loading code, and the relevant issue of AS1288 relating to glass in buildings). Without knowing the specific date of installation for the handrail the precise requirement cannot be stated. The normal expectation would be for the glass panel used in handrails/balustrade to be of sufficient thickness it would withstand human impact loading, the minimum thickness being determined by type, area and method for securing the glass. A sufficient impact force with the glass panel would result in the panel shattering to some degree, the specific being determined by the type of glass used (e.g. safety glass, laminate glass, etc)."
44. Before giving his evidence, Mr Burn had the opportunity of reading the statement from Mr Livingstone of 8 July 2014. With the benefit of that information, he said: "A. Well, it gave me a clearer understanding of the construction of the balustrade, that it was actually a glass panel bolted to metal lugs, and that the bolts that failed would have been the ones that held the glass to the lug. Q. Having regard to the photographs that you saw this morning and that report, have you reached that conclusion as to how the failure occurred; that is, how the glass came to fall out? A. Yeah. The bolts were.. (not transcribable) and basically corroded sufficiently so that when there's pressure applied to the glass they snapped and the glass swung down." (Black 57Q - U) "A. The method used to secure the glass panel to the posts was, from looking at the photographs, four bolts, which would be through the glass panel and through the bracket on the post. If one of those bolts fails because of corrosion, the panel is going to pull away from the bracket and just by the - if one bolt is corroded, unless one of the other three bolts has been replaced, they will be in a similar state of degradation. So, as the panel falls away, the increased load on the other bolts is going to cause them to snap as well." (Black 58S - U)
45. Mr Burn expressed an opinion as to the likely progression of any corrosion of the bolts on the balustrade as follows: "Q. Would you expect, based on your experience, that any corrosion would have continued during that time? A. Unless they'd been covered up with paint or something in the meantime, yes, it would have continued. Q. You make reference in your report to the way to properly test the depth of the corrosion, and you refer specifically to unscrewing and re-screwing the particular fixture. Is that right? A. Yes. Q. What's the purpose of that? A. You can only see the corrosion on the outside, at the end of the bolts and nuts. To determine how much it's affected the shaft of the bolt and that through the bracket, through the sheet of glass, you'd have to physically look at that. Q. And to do that you'd have to undo it. A. You'd have to undo it, yes. Q. And merely painting over the end of the bolt, how would that affect, positively or negatively, the integrity of the bolt itself. A. It will have minimal effect on the shaft through the bracket and through the glass. It will only protect the end which has been painted. HIS HONOUR: Q. Sorry, does that mean, if there's a corrosive process already affecting the shaft, notwithstanding that the end is painted, the shaft would continue to corrode? A. Yes." (Black 60Q - 61G)
46. Mr Burn estimated the likely load produced by the respondent leaning against the balustrade would be between 1 and 50 kgs (Black 62F). He described the likely mechanism of failure as follows: "Q. Are you telling his Honour that one bolt failed or they all failed? A. I'm of the opinion that one bolt failed and, as a result of that one bolt failing, the transfer of load to the other three bolts caused them to fail, like a zipper effect sort of thing. Q. You're assuming that all four bolts failed. A. Ultimately, yes." (Black 62M - P)
47. In cross-examination Mr Burn gave the following evidence on the assumption that the bolts had not failed. "A. If the panel of glass came away from the post and the bolts remained intact, then it means the glass itself failed, where the bolts went through the glass. It would have fallen through, and that would be less likely, in my opinion, to occur than the bolts themselves snapping." (Black 63J) Q. If the bolts had remained in place after this accident, then your theory that the bolts had fractured and failed couldn't be correct, could it? A. The bolts could be partly in place but, yes, if the bolts and their nuts were fully intact after failure, then some other mechanism would have caused the failure. Q. You never inspected this balcony at any relevant time, did you? A. No." (Black 63T - V) "Q. You have accepted today that it is possible that the glass may have failed. You accept that, don't you? A. It's a possibility, but I consider it unlikely. HIS HONOUR: Q. Why would you consider it unlikely? A. The thickness of the glass to try and pull the head of the bolt through, especially with having had a washer behind it to help stop it dragging through the hole, means you're pulling through a substantially larger hole in the glass than you are trying to break the bolt. " (Black 65H - L)
48. Mr Burn explained the basis for his opinion as follows: "A. There are other ways it could have failed but, as I said, in my opinion, the most logical and apparent reason for failure would be the corrosion of the bolts holding the glass in place. HIS HONOUR: Q. What compels you to that view as opposed to other possible causes? A. Generally glass balustrades are reasonably sound; they last a good amount of time. This information here says it was laminated glass. Laminated glass is very difficult to fracture, so to pull a bolt through laminated glass would be exceedingly difficult. One of the reasons they make car windscreens out of laminated glass is because they prevent the majority of rocks thrown up from going through and therefore the potential for driver fatalities. I would therefore consider it highly unlikely that the bolt could have been pulled through the glass and for the panel to fall away, leaving the bolt on the post." (Black 66F - J) "A. If laminated glass is impacted with, usually only one of the sheets of glass will crack, and it takes a substantial impact force to cause the glass to crack in the first place." (Black 66P - Q)
49. Mr Burn set out his experience in relation to how glass fractures as follows: "Q. Mr Burn, have you actually studied how glass fractures? A. Only if I'm reserving on site where I've been with fragment of glass and glass shades and shattered glass and - the old days of the safety glass in the windscreen, where they shattered into the crazed pieces, as opposed to laminated glass, where you get the chip out of it. Q. That's the extent of your expertise on this topic. Is that right? A. On the way glass fractures, yes. Q. It's the case, isn't it, that you really don't have any expertise to give an opinion to this Court on the extent to which the glass may have contributed to this fall. You would accept that, wouldn't you? A. I would say that the plant and that I've been in charge of when I was in local government and stuff, with broken windscreens, and picking branches of trees and that - with laminated glass, I would be able to give an opinion as to how laminated glass is likely to split versus fracture and fall away through impact loads. Q. You don't even know how thick this glass was do you? A. No. Q. You don't know what the bonding compound was do you? A. No. Q. You don't know what the glass specification was do you? A. No. Q. As to the windscreen in your father's car, you don't know what the thickness of that glass was do you? A. No because we're talking about 15 - 20 years ago so I couldn't use that versus what we use now. HIS HONOUR: Q. Where did you acquire your understanding of how laminated glass behaves when struck? Q. Well as I said, I supervised the plant when I was in Local Council and part of my job was to - its acquisition, its maintenance, its operation and being in the rural shire at times when the windscreen of the various items of the plant were struck with branches and they tended to split, and you get the crack where they were impacted or if they didn't - it's unlike a car where you get the chip situation and very rarely did the window shatter and fall away - it's more a case of a split and then the plant put in a new windscreen or a new side window whatever ordered in to replace the cracked one." (Black 67C - V) "A. Well most of the stuff I would have seen previously would be designed for the plant and automotive industry usage." (Black 68H)
50. Mr Burn gave evidence as to his understanding of how the glass on the balustrade may have reacted if it fractured: "Q. To what extent is an understanding of the specification necessary for undertaking the analysis which you've done? A. Only to the extent that the glass panel is - well, it's only supported by four points, two on each edge. It has a certain area, certain height - or certain height by width which gives a certain area, and therefore, under the glass standard, depending on whether it's annealed glass, safety glass or laminated glass, it would have to have a certain minimum thickness to be considered safe. Q. The fact is that you would have to know, I want to suggest to you, what the specification of this glass was, wouldn't you, to form the opinion that it was unlikely that the glass failed. A. The glass was installed originally under the standard at the time it was installed, which would have - I've taken that to mean that the glass would be of a certain strength and characteristic. Whether it's glue A, glue B to hold the laminates together, it doesn't matter. The glass itself is capable of meeting the requirement of the standard, otherwise it wouldn't have been used in that location. Q. But, you see, you don't know what the specification of this glass was. You don't know the thickness of the glass, do you? A. Not without being given a sample of the glass. Q. I want you to assume that, contrary to the assumption that you've been given, that this failed as he leaned against the balustrade - I want you to ignore that assumption - Mr Wearing Smith fell heavily into this glass balustrade, with the upper half of his body striking the glass balustrade, and that the glass fractured. All right? Can you make that assumption. A. Fractured or shattered? Q. Fractured. A. Yes. Q. If that assumption is taken, then that would be an important matter for you to take into account as to the mechanism of this fall, do you agree? A. It would potentially influence it, but as my expectation with laminated glass even if it cracked, it wouldn't have failed and fallen away. HIS HONOUR: Q. In order to answer Mr Morris's question, would you need to know more about the resolution of forces, such as the weight of Mr Wearing Smith and the distance over which he fell before he struck the glass? A. Yes, and also a bit more about the size of the glass panel. MORRIS: Q. And you just don't have any of that information, do you? A. No. Q. Can I suggest to you that this opinion that you've sought to give that this panel failed because of rust in the bolts is just an exercise in speculation. A. Based on the information that was presented to me, that was the conclusion I drew, yes. Q. I want to suggest to you that you cannot opine as to the mode of failure of this balustrade, given the material you've had. A. Given the material I've had, I've come to the conclusion that the bolts failed, and the glass panel fell away as a result of the bolt failure." (Black 68J - 69U)
51. Mr Burn gave evidence about other modes of failure, apart from the bolts. "HIS HONOUR: Q. What are the other reasonable hypotheses, if any, to explain this incident, other than the theory of the corroded bolts failing? A. Well, the only other thing I could think of to be a possibility would be if the laminate themselves separated, but that would be visually obvious by the fact that, if it was clear glass, you wouldn't be able to see through it any more, in which case the structural integrity of the panel would be obviously in question because it would be from being fairly rigid to becoming quite flexible. Q. Was that the only other reasonable hypothesis? A. It was the only other one I can think of. MORRIS: Q. Might there have been an invisible manufacturing defect in the glass? A. It's unlikely to get a defect in the two panes of glass lining up so that they work in concert. Q. Unlikely but possible. Do you accept that? A. It would be a very remote possibility. … Q. Had a defect of the type suggested to you by my learned friend been present, would you expect there to have been some obvious signs of it? Q. Could you answer that, please. A. Depending on the exposure to sun and cold on the glass panel, a latent condition may or may not become visible over time. If it forms a crack, causes the glass to crack, it would become visible. If it didn't cause the glass sheet to crack, it wouldn't necessarily become visible. Q. Would you expect a defect to cause it to come away at four points where it's attached to the balustrade? A. No." (Black 70F - 71F) The accident
52. Much of the evidence at trial related to how the accident occurred. The purpose of adducing that evidence was to determine how forcefully the respondent came in contact with the balustrade. The effect of the evidence, however, can be briefly stated.
53. The respondent had no recollection of the mechanism by which he came to fall from the rear balcony. He had no clear recollection of how far from the balustrade he was seated, but thought it was about a metre to a metre and a half. He remembered reaching out with his left hand towards the balustrade but otherwise had no recollection of what happened. He had no recollection of putting his hand on the glass (Black 14).
54. The respondent's wife gave the following evidence: "Q. Yes, immediately before and leading up to, and the fall. A. Well I saw him stand up, and I thought, you know, he's going to walk around, and then suddenly he seemed to be unsteady on his feet, and I though, "My God, has he got a cramp again?" And he turned around, put his arm out - … A. Yes. He turned around anticlockwise, and put his left arm out, and I thought - Q. Did you see where his hand landed? A. If it landed at all, it was on the top. Q. Of what? A. Of the glass. … Q. Did you see his hand come into contact with the glass? A. I'm not sure. It happened very, very quickly, and I was just suddenly aware that he was gone. Q. Disappeared from your view? A. Yes." (Black 33V - 34V)
55. Mr Stobo was sitting near the respondent. It was his evidence that the respondent stood up and "seemed to get his foot caught perhaps, on the chair." He thought that something made the respondent stumble. He observed the respondent to take a step and reach out with his left arm. He did not see the respondent fall.
56. Mr Stobo thought that there was a railing on top of the balustrade and that the respondent was reaching for it. He was clearly wrong in that regard. It was common ground that there was no railing on top of the balustrade, just glass panels. Mr Stobo saw some glass where the respondent fell. He was not able to say whether there was glass on the balcony because he did not specifically look.
57. Ms Swift did not see the respondent fall. She was not asked whether she saw any glass on the balcony. She did, however, see that one of the glass panels had disappeared. She observed glass where the respondent had fallen. "A. Yeah. The glass was - by the time I saw him, he was trying to sit up, and the glass was still in some big pieces. And I remember thinking that was good, because there was a big sandstone rock there, and I would have hated - that I think cushioned his fall a bit; that if he'd landed on that rock he would have been a lot worse off." (Black 85P)
58. Mr Swift gave evidence that he saw the respondent stand up, his left leg give way completely causing him to stumble to his left and crash into one of the glass panels with great force. He said that the respondent was heavier than he was at the trial because of his illness. He described the respondent as crashing through the glass panel. He said that he did not see the respondent put his hand out.
59. When asked about the glass, he said: "A. Well, it wasn't there afterwards so it was there before and there was a hole where a glass panel was and Peter had clearly gone over with the glass panel, so it had to have preceded him in going over into the garden bed." (Black 94V)
60. Mr Dobson gave evidence that the respondent got up, probably caught his foot on the chair or the table, stumbled towards the glass balustrade and hit it with his right shoulder and went straight through it, right in the middle of the glass. He described the respondent as hitting the glass hard. He did not see the respondent put his hand out.
61. In relation to glass, his evidence was: "A. … and I'd say the glass has saved him from serious injuries because, when he came down on the garden terraces underneath, the glass was underneath him and he was laying on his back on top of the glass. … Q. Did you notice any change in the appearance of the glass? A. I can't say I noticed it but obviously it was broken. It would have been broken, yeah, as he hit it." (Black 112E - J)
62. The issue between the parties was the force with which the respondent came in contact with the glass panel. The findings of the primary judge
63. The primary judge made a number of credit findings. He accepted that the respondent, his wife and Mr Stobo were all witnesses of truth. He found that Mr Livingstone had an unreliable recollection of key events and that his evidence included elements of unwarranted assumption and reconstruction and also involved inaccuracies. His Honour concluded that caution should be exercised before his evidence could be accepted.
64. He found Mr Swift to be an unreliable witness, who was not careful or considered in his responses. He found that Mr Dobson's recollection had been affected by his ingestion of alcohol and that he was an unreliable witness because his evidence involved reconstruction and was in part based upon assumptions. The primary judge accepted Ms Swift as a witness of truth.
65. The primary judge accepted Mr Mesker as a witness of truth. He concluded that because Mr Mesker did not have the skills of a structural engineer, some of his observations and conclusions had to be qualified by that fact. The primary judge found that no credit issues arose from Mr Burn's evidence "which stood to be evaluated according to its content".
66. The primary judge made the following findings in relation to the premises. There was no maintenance carried out to the "corroded metal lugs and posts" between the purchase of the property in February 2003 and the painting carried out by Mr Mesker in March 2006. There was no evidence of the state of the securing bolts at the time that Mr Mesker treated and painted the posts and lugs on the balustrade. There was no evidence of any further maintenance inspection or repairs to the balustrade between 2006 and the date of the accident "… at the time of the accident, the underlying metal structure was not as thick, and its components were not as integral, compared to when it had been initially installed". The extent to which the application of the rust converting compound and surface paint by Mr Mesker's company in 2006 was successful in arresting the rusting process, especially the shafts of the bolts, was uncertain.
67. When considering how the accident occurred, the primary judge observed that the description of what Mr Dobson saw was remarkably similar to that given by Mr Swift. He found that their evidence was "tailored" to exaggerate the force of the respondent's contact with the glass panel. He preferred the evidence of Mr Stobo to that of Messrs Dobson and Swift.
68. The primary judge found that the mechanism of the accident was that one or more of the four bolts, holding the glass panel in place at its base, failed due to corrosion having weakened those structures, as explained by Mr Burn in his evidence. He found Mr Burn's expert explanation to be cogent and plausible and to provide a rational cause for why the panel gave way. He found that Mr Burn's explanation combined a common sense understanding of the progression of the rusting process with his expert engineering understanding of the way in which the material in question was affected by that process. The primary judge inferred that the rusting process had continued from the time of acquisition of the house, so as to weaken the bolts to the point where they sheared or gave way when the respondent leaned upon the balustrade.
69. The primary judge found: "132 In the absence of evidence of the bolts having been dismantled and treated for rust at the time Mr Mesker's company carried out painting works in 2006, given the presence of scaled rust on the lugs at that time which was advanced to the point of having to be chipped off the lugs, I find it more probable than not that the securing bolts were also affected by rust and that a progressive rusting process had set in and had continued unabated until the time of the plaintiff's fall."
70. The primary judge articulated the relevant duty as: "136 … a duty to take reasonable care, including to take precautions against the risk of injury occurring due to a condition of the premises which they knew or ought to have known to represent a foreseeable risk of injury to persons such as the plaintiff."
71. By reference to s 5B of the Civil Liability Act 2002 (CLA) the primary judge found that the number of guests in close proximity to the balustrade (which had earlier been the subject of a recommendation for replacement and which had not been the subject of an inspection for structural integrity in respect of any of its component parts) made it reasonably foreseeable that there was a risk of harm from a failure of the balustrade (Red 52F - J).
72. The primary judge identified the risk of harm as: "143 … the risk of a fall in circumstances where to the knowledge of the defendants there had been an earlier recommendation to replace the balustrade with a taller structure, with stickers on the glass, to make it comply with changed fencing requirements and that recommendation had been considered by the defendants and rejected due to considerations of cost".
73. The primary judge found that because the appellants had not completely replaced the balustrade in 2010, reasonable maintenance required that care be taken in the form of dealing not only with surface rust, but also ensuring that the structural components were either not affected by rust or if they were, that those components were properly treated or replaced so as to maintain safety (Red 53E - H).
74. The primary judge found that the appellants were in breach of the duty which they owed to the respondent in failing to obtain any structural advice, especially in the absence of the structure being disassembled for rust proofing and painting purposes.
75. Put another way, the primary judge found: "153 I am satisfied that the combined effect of the defendants having obtained the pre-purchase building inspection report dated 18 December 2002, and in 2006 arranging for a painter, without structural qualifications of any kind, to attend to the identified surface rust in the manner described in the evidence of Mr Mesker, without any consideration of the state of the component parts of the supporting structures, ought to have raised in the minds of the defendants the question of whether the rust so identified had been adequately addressed from a structural and safety viewpoint."
76. The primary judge found that while the posts and lugs on the balustrade may have been treated for rust by Mr Mesker in 2006, the shafts of the bolts were affected by corrosion at the time of the respondent's fall because they had not been treated for rust, either in 2006 or in the intervening period. The primary judge found that a reasonable person in the position of the appellants would have taken precautions by taking advice and action to ensure the structural soundness of the balustrade before allowing guests to be in close proximity to the structure. His Honour reached that conclusion because the appellants were on notice that replacement of the structure, or proper remedial treatment of rusted components had been recommended as necessary.
77. The primary judge found that an appropriate response to such a risk of harm was to ensure that all components of the supporting structure, which were likely to be subject to attack from rust, were adequately treated in such a way as to address the problem of corrosion or, absent any inquiry by the appellants along those lines, replacement of the structure. His Honour found that the relative burden on the appellants to take such precautions was not a great one, although it would have involved some cost.
78. In summary, his Honour found that the exercise of reasonable care required that the appellants consider and respond to the risk of failure of the balustrade before allowing guests near it. His Honour found that the important difference between this case and other cases where homeowners had escaped liability was that the appellants in this case had notice of an underlying problem of rust in the steel components of the balustrade, as was identified in 2002 in the pre-purchase inspection report. His Honour found that the appellants were advised of the presence of rust and of the need for it to be appropriately treated or for the structure to be replaced, yet they took no active steps to satisfy themselves as to the structural safety of the balustrade and its supporting components in that there was no investigation into the safety of the structure.
79. The primary judge found that the appellants could not have reasonably assumed that the work carried out by Mr Mesker as a painter had the effect of ensuring structural soundness of the areas which he had chipped free of rust, nor could they reasonably assume that Mr Mesker as a painter who had not dismantled the balustrade would have identified structural problems in it if they existed. His Honour found that the appellants failed to consider or recognise that corrosion of the supporting components of the balustrade that had first been identified in 2002 had weakened its structural soundness. He found that the appellants had failed to take reasonable and available safety precautions in conformity with the duty of care they owed to the respondent. Their breach of duty involved the failure to ensure the structural soundness of the balustrade and the failure to isolate the area from guest access.
80. The primary judge noted that there was no real issue as to causation and that if the bolts which held the glass panel in place had not corroded, they would not have failed, thereby causing the glass panel to give way and the respondent to fall. He found that the failure of the bolts was a necessary condition for the harm to occur and that factual causation, pursuant to s 5D(1)(a) CLA had been established. The appeal
81. The appellants relied upon the following grounds of appeal:
82. The trial judge erred in finding the scope and content of any duty of care owed by the owner of a residential property required the Defendants to: (a) Inferentially, have the balustrade inspected by a structural engineer; or (b) Required the balustrade to be dismantled and inspected.
83. The trial judge erred in finding the Defendants breached their duty of care in the circumstances, having had the posts repainted by a skilled painter, and inspected by a fencing contractor prior to the accident, and not being on notice of a defect which could affect the structural integrity of the balustrade.
84. The trial judge erred in failing to address the unchallenged evidence of Ms Swift that there was only light surface rust on the post, and no evidence of staining after painting.
85. The trial judge erred in relying on the opinion of Mr Burn on the question of causation and in his finding of the mode of failure of the balustrade.
86. The trial judge erred in rejecting the evidence of Mr Swift and Mr Dobson: (a) Solely on the question of credit; (b) Without assessing the extent to which they corroborated each other on the events leading to the Respondent's fall; (c) Without addressing the Appellants' submission that Mr Swift and Mr Dobson corroborate the other on how the accident occurred.
87. The trial judge engaged in impermissible speculation as to: (a) The mechanism of injury and the circumstances leading to the failure of the balustrade; (b) The mode of failure of the balustrade; and (c) Causation.
88. The trial judge erred in disregarding the unchallenged evidence of Mr Livingstone, that on inspection shortly after the accident, all fixed and floating flanges that would have restrained the glass panel were in place on the post, leading to the only inference available that the bolts had not failed (contrary to the findings of the trial judge that they had done so).
89. The trial judge erred in finding: (a) That the Appellants ought to have known there was a potentially dangerous defect due to corrosion in components that supported the balustrade structure; and (b) That the Appellants failed to exercise reasonable care and skill as residential homeowners.
90. The respondent relied upon a Notice of Contention as follows:

• 1. His Honour failed to consider properly the alternate theory that the glass in the balcony had failed. Evidentiary issues - Grounds 3, 4, 5, 6 and 7

1. There was no challenge to the evidence of Ms Swift that there was only surface rust on the posts and lugs in 2006 and no evidence of staining after painting (at [22] - [23] hereof). That evidence was supported by that of Mr Mesker as to the technique which he used to remove rust and to convert any rust affected surface to inert steel (at [26], [28] hereof). It was supported by the observations of Mr Livingstone when he inspected the balustrade in 2010 (at [31] hereof and Blue 60G). It was supported by the evidence of Mr Swift. The observations of Ms Swift were consistent with the pre-purchase report which referred to "the metal lugs and posts have some corrosion …". That description did not suggest extensive corrosion or rust on those components.
2. In other words, there was no evidence that the metal posts and lugs on the balustrade were extensively or dangerously rusted before Mr Mesker's work in 2006. After that date, the only evidence was that there was no evidence of observable rust or corrosion. There was no evidence whatsoever as to the state of the bolts connecting the glass to the lugs, either before or after Mr Mesker performed his work. The pre-purchase report made no mention of them.
3. The primary judge rejected in its entirety the evidence of Messrs Swift and Dobson on credit grounds. Rather than taking into account that their observations as to the movement of the respondent were similar, the primary judge found that they had deliberately "tailored" their evidence so as to exaggerate the force with which he came in contact with the glass panel. That was not a finding open to his Honour. This was a very serious adverse finding which required compelling evidence to justify it. A suggestion of concoction was never put to either witness, nor was such an issue raised by the parties at the trial. Moreover, the evidence of Mr Dobson was corroborated in an important respect by Mr Stobo in that he observed the respondent to trip, or catch his leg, when he got to his feet immediately before the accident.
4. It was open to the primary judge to qualify the evidence of Messrs Swift and Dobson on demeanour grounds on the basis that they appeared to him to be describing what they saw in rather dramatic terms and to be exaggerating the force with which the respondent came in contact with the glass panel. That, however, did not involve the complete rejection of their observations. This is particularly so when the respondent had no recollection of how he came to fall and neither his wife nor Mr Stobo saw the fall. Given that Mr Stobo saw the respondent catch his leg or trip, which was consistent with the observation of Mr Dobson and to a lesser extent that of Mr Swift, it is clear that the force involved must have been substantially more than the respondent merely leaning on the glass panel.
5. The primary judge was not entitled to reject the evidence of Mr Dobson on the basis that his observations were adversely affected by his ingestion of alcohol. While Mr Dobson volunteered that he had consumed some alcohol before the fall, it was never put to him that his ingestion of alcohol prevented him from making an accurate observation of how the respondent came to fall.

The contentions of the parties at trial

1. A significant factual issue, as to which the evidence was sparse, was the mechanism that caused the glass to give way: did the glass break, shatter, or crack before hitting the ground below, or did the whole of the glass panel separate from the uprights to which it was attached? There was, in fact, no evidence that the glass shattered before it hit the ground below. There was no direct evidence that it had separated from its metal anchorings (to the uprights); an inference that this is what happened emerged, principally from the evidence of Mr Burn.
2. The transcript of 13 August 2014 indicates that both parties provided written submissions. Those written submissions were not included in the appeal papers before this Court.
3. The case advanced on behalf of the respondent was that there was a defect in the balustrading and that this was known to the appellants, and had been known to them since 2002. The defect was caused by the corrosion of the metal lugs and posts by which the glass was attached to the posts, or uprights. As support for this contention, reliance was placed upon the evidence of the location of broken glass after the accident; there was no evidence of broken glass on the balcony; all the broken glass was in the garden bed below. This would indicate that the whole panel of glass had come apart from its anchoring bolts. On the respondent's case, the painting by Mr Mesker did nothing to address the corrosion. Mr Mesker had no suitable qualifications to assess the integrity of the glass panel or the post to which it was attached. Nor did Mr Livingstone, on his inspection before or after the accident, have relevant qualifications; he was a sales consultant.
4. On behalf of the appellants, issue was taken with the mechanism of the collapse of the balustrade. It was submitted that the evidence did not support a conclusion that the bolts were corroded; or, at least, corroded to a sufficient extent as to amount to a risk to safety.
5. However, the principal argument advanced on behalf of the appellants was that the duty of care which an occupier of premises owes to an entrant was not such as to require the replacement of the glass balustrade. (Formulating the case in this way is of some significance, as will appear.)

The findings of the primary judge

1. The primary judge commenced his judgment by identifying three issues for his determination. They were: "Issue 1 - The probable mechanism by which the glass panel gave way; Issue 2 - Whether the plaintiff has established that the defendants had breached the duty of care they owed to him; Issue 3 - Whether there was contributory negligence on the part of the plaintiff."
2. He proceeded to make general credibility findings in respect of each of the witnesses. He found that the respondent: "… gave his evidence in a measured and considered manner. He was careful to identify the limits of his recollection on the factual matters canvassed within the evidence. He avoided speculation and he made concessions where appropriate." He concluded that the respondent was "a credible and reliable witness" within the limits of his recollection.
3. He made similar favourable findings about Ms Montgomery, Mr Stobo and Ms Swift. He considered that no credit issues arose with respect to Mr Burn. He made less favourable findings about the evidence of Mr Livingstone, whose recollection as to key events he said was unreliable, and included "elements of unwarranted assumption and reconstruction, and … inaccuracies"; about the evidence of Mr Swift, who he considered had exaggerated his evidence as to the manner in which the accident occurred, had engaged in a process of reconstruction and who he held to be unreliable; and Mr Dobson, who, he noted, had been consuming alcohol for 5-6 hours prior to the accident, such as to "have had some effect on the acuteness and accuracy of his observations", and whose account, his Honour said, "varied materially at times", "involved reconstruction, and was in part based on assumptions". His ultimate conclusion in relation to Mr Dobson was that he was an unreliable witness. He described as "fanciful" the descriptions of the accident given by Mr Swift and Mr Dobson, and considered that their evidence had been "tailored" to suit an argument that the structure was sound, and that a great force had been applied to it to cause it to fall. He expressed no concerns as to Mr Mesker's credibility, but noted that his recollection of detail was "understandably limited by the passage of time" and by the loss of computer data comprising his records.
4. He found (at [39]) that, before December 2002: "… the supporting structure for the balcony fence had been affected by rust, which in December 2002, was visible through the paintwork on an external inspection. That rust remained unaddressed and uninhibited until 2006, when Mr Mesker carried out the removal of surface rust scale and the painting work he described. 40 Although Mr Mesker did not describe either the thickness of the rust scale that was removed in 2006, nor the residual thickness of the remaining rust-affected metal before it was chemically treated, it can be inferred from the above circumstances that at the time of the accident, the underlying metal structure was not thick, and its components were not as integral, compared to when it had been initially installed."
5. He then reviewed at some length the evidence of the various witnesses as to the circumstances of the accident, and to the hypothesis of Mr Burn. He stated his conclusion at [130], saying: "In considering the mechanism of failure of the glass panel, on the balance of probabilities, I find that one or more of the four bolts holding the glass panel in place at its base failed due to corrosion having weakened those structures, as explained by Mr Burn in the evidence I have already cited."
6. This was his finding in respect of Issue 1. With respect to Issue 2, the primary judge set out s 5B of the Civil Liability Act, which is as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
7. He said: "139 In considering whether the defendants had breached the duty of care owed to the plaintiff, in the context of a consideration of s 5B(1)(b) and (c) of the CL Act, the essential questions are: whether, in the circumstances where it was foreseeable that a number of guests would be in close proximity to the balustrade, the defendants ought to have known there was a potentially dangerous defect due to corrosion in components that supported the balustrade structure; and whether, in these circumstances they failed to take reasonable steps by way of precautions, to either rectify or address that defect if they intended to allow the balcony to be used to entertain guests who would not know of such defects, or alternatively, to isolate the balcony from guest access."
8. The primary judge proceeded on the basis (unchallenged) that the appellants, as occupiers of the property, owed the respondent a duty of care. The relevant question was whether the appellants had failed to discharge that duty. He considered it critical ([145]) that the appellants had been advised, in 2002, to have the rust affected area treated, or the balustrade replaced. He made the following findings: "146 Whilst it was understandable that at the time, the defendants baulked at the cost of replacement, such a stance necessarily required that reasonable maintenance care be taken in the form of dealing not only with surface rust, but also ensuring that the structural component parts were either not affected by rust, or if they were, that those components be properly treated or replaced so as to maintain safety. 147 This was particularly so in circumstances where it was foreseeable that the first floor balcony would be used as a guest entertaining area. If the component parts of the structure were not sound, guests leaning on the balcony balustrade could foreseeably fall to the ground below if the structure gave way."
9. He rejected a submission made on behalf of the appellants that they should not be held liable in negligence because they were not skilled in the building trades, they had engaged a professional painter to undertake remediation works identified in the 2002 pre-purchase inspection report, and that he had not identified any structural or safety issues. He rejected this submission on the basis of the four year delay between identification of the defects in the pre-purchase inspection report, and when the painting works were undertaken, a further four years thereafter, and because neither Mr Mesker, nor Mr Livingstone, was qualified to comment on structural matters ([148]-[150]).
10. He went on to say: "156 In my assessment, on a prospective consideration of the chronology of events, in 2002, and thereafter, a reasonable person in the position of the defendants would have taken precautions by taking advice and action to ensure the structural soundness of the balustrade before allowing guests to be in close proximity to that structure: s 5B(1)(c) of the CL Act: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442. 157 I am reinforced in that view because, from early times within the knowledge of the defendants, in 2002 and 2006, they were on notice that replacement of the structure, or proper remedial treatment of rusted components, was recommended as being necessary. Absent those precautions, it was very probable that the balustrade, or a component panel of it, might foreseeably give way because those components formed the basis of the structural integrity of the balustrade: s 5B(2)(a) of the CL Act. 158 In my view, in the context of consideration of a possible fall from a first floor balcony, the precautions referred to above were required because a person falling from that height was very likely to sustain a variety of serious injuries: s 5B(2)(b) of the CL Act."
11. His ultimate conclusion was: "159 In those circumstances, the nature of the burden on the defendants in this case required that they take reasonable precautions to ensure that all structural components were sound, integral and safe. 160 This could have been achieved either by ensuring all components of the supporting structure likely to be subject to attack from rust were adequately treated in a way that addressed the problem of corrosion without compromising the protective purpose of the structure, or absent any inquiry by the defendants along those lines, replacement of the structure."
12. Importantly, in my opinion, he also noted that an alternative precautionary measure was for the appellants to entertain guests in a different area of the premises that did not pose a risk to safety by reason of the unsafe balustrade.
13. His Honour then dealt with causation in a manner that has not been challenged on appeal.

Contributory negligence

1. Initially the appellants pleaded contributory negligence on the basis of asserted intoxication on the part of the respondent. That assertion was abandoned, and the appellants claimed that the respondent caused or materially contributed to his own injury by reason of:

• failure to take appropriate care for his own safety;
• failure to secure a proper foothold;
• attempting to stand and walk in circumstances where he may have been unable to support himself.

1. The primary judge rejected each of these, finding that the respondent had taken only one step when he experienced a momentary unsteadiness to which he responded reasonably by reaching out to steady himself on the nearby balustrade, and that it was the cramp that caused him to experience unsteadiness, that events transpired rapidly in such a way as not to sustain an assertion of contributory negligence. No ground of appeal challenges that conclusion.

The appeal

1. The grounds of appeal are fully set out in the judgment Hoeben JA. It is unnecessary to repeat them.

Grounds 3-7

1. Grounds 3-7 concern the fact finding exercise. By Ground 3, the appellants complain that the primary judge failed to address "the unchallenged evidence of Mrs Swift that there was only light surface rust on the post, and no evidence of staining after [Mr Mesker's] painting".
2. The whole of Ms Swift's evidence in this respect was as follows: [In evidence in chief] "Q. Do you recall any staining on the paintwork? A. The poles were steel, not stainless steel, and they had surface rust. Alex took the rust off and rustproofed it and repainted them in a charcoal colour." [In cross-examination] "Q. Would you say he [Mr Mesker] painted the steel stanchions themselves because they had discoloured? A. They had surface rust on them, yeah. And I'm not sure how he did it, if he burnt it back, if he just I think rubbed it back and treated it with rustproofing. I mean, that was what he said he was doing in the quote, and he's done work for us before, and I've always had faith in him doing what he said he would do. … Q. It was cosmetic, what he was doing? A. There wasn't rust through that it needed replacing. It was only surface rust, yeah."
3. There was no suggestion that Ms Swift had any expertise in the assessment of rust penetration, nor, indeed, that she had made any attempt to examine the structure for rust penetration. In counsel's final address in the trial, no reliance was placed on this evidence. During the course of counsel's final address, the following exchange is recorded: "HIS HONOUR: Doesn't it depend on whether you are comfortable with the view that the appearance of rust is only cosmetic and not structural? [COUNSEL]: The fact is that they got a painter in to perform the task. He wasn't concerned that there was any structural issue with respect to the paint and - HIS HONOUR: But is that his field of endeavour? I mean painters will paint over cracks as well, won't they? [COUNSEL]: I'm sure there are varying quality of painters. But the fact of the matter is that, if you combine the combined evidence of Mr Mesker and Mr Livingstone about the state of this, the state, and I'm talking about Mr Livingstone at the time of his attendance in 2010 and his time of attendance after the event, it would be my submission that your Honour would find that these posts were structurally sound."
4. No mention was made in this exchange, or anywhere else, of Ms Swift's evidence that the rust was surface rust only. As mentioned above, the written submissions made at trial were not available to this Court, but one would have expected that if they contained anything additional they would have been included in the appeal books in order to support this ground which, it should be emphasised, complains of a failure by the primary judge to address that evidence.
5. In the circumstances, it was entirely appropriate for the primary judge to attribute no weight to Ms Swift's evidence in this respect. And the only mention made of this evidence in the written submissions to this Court was in the recitation of "background facts". It was not further mentioned in that part of the written submissions that appeared under the heading "Appealable errors".
6. I would reject Ground 3 of the appeal.
7. By Ground 5 the appellants complain of the treatment of the evidence of Mr Swift and Mr Dobson. The principal complaint is that the primary judge rejected their evidence "solely on the question of credit", and failed to assess the extent to which the evidence of each corroborated the evidence of the other.
8. One specific complaint made concerning the treatment of Mr Dobson's evidence concerned the finding of his alcohol consumption, and the inference expressly drawn that this had impaired the accuracy of his observations and recollections. It was submitted that there had been no cross-examination to the effect that he was so intoxicated as to affect his perception or memory.
9. I have set out above the passage of the evidence, in cross-examination, in which this subject arose. In fact, it was Mr Dobson himself who introduced the subject. In a passage of cross-examination in which his recollection was being tested, with specific reference to the identities of the persons with whom he was sitting, Mr Dobson said: "Well, you've got to also consider … I'd had a few drinks too …" This can only be interpreted as an explanation for what may have been a failure of memory. When asked what he meant by "a few drinks" Mr Dobson asserted that "we were still compos mentis". Implicit in this is a recognition that he was, to some degree, affected by alcohol, though not to an incapacitating degree. Putting these two answers together, it is not difficult to draw the inference that he was, to some extent, affected by alcohol.
10. The assertion that the evidence of Mr Swift was rejected "solely on the question of credit" is not correct. At [83] the primary judge set out seven instances of what he called "variations within the descriptions [Mr Swift] gave". These led him to the conclusion that Mr Swift was "not a careful witness" ([84]).
11. The primary judge subjected Mr Swift's evidence to a lengthy analysis. He undertook the same exercise with respect to Mr Dobson's evidence.
12. Once that exercise had been undertaken, examination of the extent to which the two witnesses corroborated one another would have been of little value. It is true that Mr Swift and Mr Dobson both used (similar) vivid language to describe the force with which the respondent struck the balustrade, and, in that sense, could be said to have corroborated one another. But the search for corroboration would have required focus, not only on those parts of their evidence that coincided, but also on discrepancies. Importantly in this respect, Mr Dobson was positive that the respondent had hit the glass with his shoulder; Mr Swift that it was his hip. Moreover, had such an examination been undertaken, it would have been necessary to replicate it with respect to the evidence of the respondent, Ms Montgomery, and Mr Stobo, who gave essentially similar accounts of what happened immediately before the collapse of the balustrade. Those accounts did not include assertions that the respondent struck the glass with great force.
13. I would reject Ground 5 of the appeal.
14. By Ground 4 the appellants complain of the primary judge's reliance on the evidence of Mr Burn as to the mode of failure of the balustrade and its cause, and, by Ground 6, they complain that the primary judge engaged in "impermissible speculation" as to these issues.
15. Criticism was made of Mr Burn's evidence. One such criticism was that he had reached his conclusions without examination of the balcony and without knowing any relevant specifications of the bolts or the glass. Given that, by the time Mr Burn became involved, the balustrade had been entirely replaced, and given that there appears to have been no information - certainly no evidence - about the specifications of the bolts and glass, these criticisms were somewhat hollow. Mr Burn had to do the best he could with the material available to him.
16. With respect to his evidence that the accident had happened by reason of failure of the bolts, it was submitted that "the balustrade could have failed for a number of reasons, including an invisible defect in the glass". This proposition was based upon one question and answer in the cross-examination of Mr Burn. The question and answer were: "Q. You could have had an invisible defect in this glass could you not? A. It's a possibility." I do not read this answer as a concession that a glass defect was a realistic possibility.
17. In any event, two responses may be made to the proposition. The first answer is to put the question and answer in the context of the whole of the cross-examination. It was preceded by this question and answer: "Q. You have accepted today that it is possible that the glass may have failed. You accept that, don't you? A. It's a possibility, but I consider it unlikely." That was followed by further cross-examination that highlighted the dearth of concrete information available to Mr Burn; it was followed, immediately, by: "Q. You see, there is a range of possibilities as to how this may have failed. Do you agree? A. There are other ways it could have failed but, as I said, in my opinion, the most logical and apparent reason for failure would be the corrosion of the bolts holding the glass in place."
18. The second answer to the proposition is that, had the glass had a defect and broken, it might reasonably be expected that pieces or shards of glass would have been on the balcony floor. But there was no evidence that there was, and some evidence that there was not.
19. Moreover, in his second report, Mr Burn commented that: "Normally it would be expected when glass is used as a balustrade or handrail treatment the type of glass used would be substantial enough to withstand the specified loading under relevant ordinances and Australian Standards … The normal expectation would be for the glass panel used in handrail/balustrade to be of sufficient thickness it would withstand human impact loading …"
20. I do not consider that there was any error in the primary judge's acceptance of Mr Burn's evidence. He was the only witness with any expertise. True it was that, by reason of the absence of concrete facts, he was forced to engage in inferential reasoning. Experts are permitted, by reason of their expertise, to engage in a process of extrapolation from known facts: Hatziandoniou v Ruddy [2015] NSWCA 234; 72 MVR 171. That is what Mr Burn did, and it was no error by the primary judge to accept his process of reasoning. To do so is not to engage in speculation. I would reject these grounds.
21. The final ground concerning the facts was Ground 7, by which the appellants complain that the primary judge erred in disregarding what was said to be the unchallenged evidence of Mr Livingstone, that on his inspection shortly after the accident, all fixed and floating flanges that would have restrained the glass panel were in place on the posts. The primary judge found to the contrary. Much of the relevant evidence is set out above, but I will, for convenience, repeat it here.
22. The relevant evidence in chief was: "My recollection is I had a look at the particular site where the glass was missing. I was interested to see why the accident might have happened. The posts were in good order, the brackets were in the order. All the brackets and bolts were in order. The only thing that was missing was the glass." In cross-examination after acknowledging that he had made no reference in his statement to seeing the bolts, Mr Livingstone gave the following evidence: "Q. So is it since then that, for the first time, you say you have a memory of seeing the bolts in position? A. That's correct. Q. How did that come about? How is it that since 8 July, about a month ago, it was that it came into your mind that you'd seen the bolts? A. It's a matter of the more you think about things, the more things start to come back to you. Q. Isn't that a matter of reconstructing? A. Not when you think about reconstructing. Q. What, you've been going over it in your mind, have you? A. Yes. Q. And then, what, one day it came to you that the bolts were there? A. It's about why - I had a look at the structure, and to my mind everything was in place, and the question I had to ask myself, 'Why was it in place?' It's because the front and back plates were there, and a bolt would have been in place to hold that in place. Q. A bolt would have been in place to hold that in place. Is that what you say? A. Yes. Q. You're guessing, aren't you? A. Possibly. Q. You could be mistaken. A. Could be mistaken. HIS HONOUR: Q. Does that answer mean that the bolts weren't actually visible to you at the time of the inspection? A. The only way that the back plate would have been held in place would have been for a bolt to be there. Q. But you didn't see the bolts. A. I don't specifically recall. Q. In your evidence earlier today you said that the bolts were - I don't remember the exact word - either in place or unaffected. Do you recall that evidence? A. Yes, I do. Q. Was that correct? A. At the time of the question, yes. Q. Well, how do you reconcile the difference? A. As far as I'm concerned, those bolts were in place. [COUNSEL]: Q. But you have no memory of seeing them in place. A. No." And, in re-examination: "Q. Just on that issue, in answer to a question from my friend, you said words to the effect of the front and back plates were in place. Alright? A. Yes. Q. When you say that, could you just describe to his Honour what you meant by that observation. A. So on the post is welded a front and back plate in which a bolt would go through that plate to hold the glass in position. That front and back plate were in place and, as I thought I recalled, there was a bolt holding those - that bolt was still in place as well." Some of these answers suggest that Mr Livingstone engaged in the very kind of inferential reasoning in respect of which Mr Burn was criticised. But Mr Livingstone lacked the qualifications that would justify such reasoning.
23. The characterisation of Mr Livingstone's evidence as "unchallenged" is incorrect. His evidence was challenged, so far as it could be in the absence of firm instructions as to the existence or otherwise of the bolts post-accident, by testing his memory, and by doing that by reference to his statement, which made no reference to the bolts. In any event, the cross-examination I have extracted shows that, in fact, Mr Livingstone was quite equivocal. His evidence was not "disregarded", as asserted in the ground of appeal; it was, quite properly, treated as equivocal.
24. I would reject Ground 7 of the appeal.

Grounds 1, 2 and 8: duty of care

1. Each of these grounds concerns one or other of the matters relevant to the finding of duty of care, the scope and content of the duty of care, and breach of duty.
2. It is necessary to set out Ground 1 as pleaded. It is: "1. The trial judge erred in finding the scope and content of any duty of care owed by the owner of a residential property required the Defendants to: (a) Inferentially, have the balustrade inspected by a structural engineer; or (b) Required the balustrade to be dismantled and inspected."
3. The word "inferentially" was inserted for a reason. The reason is that the primary judge made no finding that the scope and content of the duty of care owed by the appellants to the respondent required them to have the balustrade inspected by a structural engineer, or required them to have the balustrade dismantled and inspected. Nor did the respondent advance any case to the effect.
4. The fallacy was repeated in the written submissions. There it was asserted: "83 His Honour found that the Appellants took an inadequate response to the rust … He found that in order to discharge the duty the balustrade needed to be dismantled and checked or that engineering opinion be obtained."
5. Paragraph 153 of the judgment was cited as the source of the "finding". Paragraph 153 reads in full: "153 I am satisfied that the combined effect of the defendants having obtained the pre-purchase building inspection report dated 18 December 2002, and in 2006 arranging for a painter, without structural qualifications of any kind, to attend to the identified surface rust in the manner described in the evidence of Mr Mesker, without any consideration of the state of the component parts of the supporting structures, ought to have raised in the minds of the defendants the question of whether the rust so identified had been adequately addressed from a structural and safety viewpoint." I have already set out [156] in which his Honour referred to the precautions that a reasonable person would have taken in the circumstances.
6. There was no evidence and no submission (at trial) that "taking advice and action to ensure the structural soundness of the balustrade" entailed retention of a structural engineer or dismantling the balustrade, or both. Ground 1 as pleaded overstates what the primary judge found. By s 5B(2)(c) of the Civil Liability Act, the burden of taking precautions to avoid the risk of harm is one of the considerations a court is required to take into account in determining whether a reasonable person would have taken such precautions. Neither party adduced evidence to establish what would have been involved in "taking advice and action to ensure the structural soundness of the balustrade". Reasonable common sense dictates that a building contractor or consultant or the like could have undertaken the initial examination; what action needed to be taken would, of course, depend upon what that examination revealed.
7. Against that must be balanced the magnitude of the risk if, as did happen, the balcony collapsed under the weight of a person who came in contact with it. Plainly, the likely seriousness of harm that would ensue is significant. Moreover, inspection and advice was not the sole precaution on which the primary judge relied. He made it plain that an alternative was simply to refrain from making the balcony available to guests until it had been rendered safe. Again, when seen in the light of the magnitude of the harm that could ensue, such a precaution could hardly be called burdensome.
8. One of the submissions on behalf of the appellant was that: "There was no evidence as to the cost of the structural engineer, or the types of test or remediating action that would have been suggested and at what cost."
9. This is correct, but what might have been suggested can now not be known, given the total replacement of the balustrade. What Mr Burn suggested was that, had action been taken in 2002, or shortly thereafter, when the building report first signalled the problem, was that the continuing corrosion might have been arrested. What is known is that, nine years after the appellants were alerted to the existence of rust, the risk that was then identified eventuated.
10. In my opinion the appellants have failed to make good any of the grounds of appeal concerning the duty of care owed by the appellants, and their breach of that duty.
11. I would, accordingly, dismiss the appeal.
12. In those circumstances it is unnecessary to consider the Notice of Contention filed on behalf of the respondent.
13. Having regard to the conclusions of Hoeben JA, I would add the following.
14. It was not, and could not have been, in issue that the appellants owed the respondent a duty of care. The key to the respondent's case lay in the determination of what was encompassed in that duty. That is a question that could not, in this case, be answered until the cause of the balustrade collapse was determined. That having been identified as failure of rusty fittings (it scarcely matters whether it was lugs, posts, or bolts) - the questions that arose under s 5B of the Civil Liability Act were:

• what was the risk of harm?;
• was the risk foreseeable?;
• was the risk insignificant?;
• what precautions would a reasonable person in the position of the appellants have taken?

1. The answer to the first question is that the risk of harm was that, if the fittings failed, a person might fall from the balcony. The second question is answered in the light of what the appellants knew. Once it was established that they had forewarning of a defect in the fittings, the risk that a person placing weight on the balcony might fall was foreseeable.
2. The very purpose of a balustrade on a balcony is to prevent persons falling from the edge of the balcony. It must be in contemplation that some weight will be placed upon the balustrade and that it will be sufficiently robust to withstand that weight. Of course, it is not expected to cope with excessive pressure or weight. (At just what point pressure or weight becomes excessive need not and cannot be decided.) This is the significance of the evidence of Mr Swift and Mr Dobson concerning the manner in which the respondent struck the balustrade. If accepted, their evidence would have raised for consideration the question of what weight a balustrade might reasonably be expected to bear. Rejection of their evidence removes the need to come to a view about just what pressure would be seen as excessive. In Jones v Bartlett [2000] HCA 56; 205 CLR 166, at [176] and following, Gummow and Hayne JJ discussed (with respect to leased premises) what constitutes a dangerous defect. Their Honours drew a distinction between defects that are dangerous of themselves, and that will, or may, cause injury through normal use of the premises, and "defects" that arise from misuse.
3. The risk that, with normal use of this balustrade - that is, the application of normal, not excessive, pressure - it might break, was not insignificant. Rejection of the evidence of Mr Swift and Mr Dobson meant that it was not necessary to consider what weight would have made the difference between a defect that would cause injury only through misuse, and a defect that could cause injury through normal use.
4. For my part, I consider that a balustrade on a first floor balcony ought to be sufficiently robust to withstand the pressure of even a relatively heavy fall against it. It is not uncommon, after all, for a number of people to lean on a balustrade such as this.
5. Moreover, given the well-known propensity of rust to progress, for as long as it was not attended to, the significance of the risk increased over time.
6. What precautions a reasonable person in the position of the appellants would have taken is to be decided in the light of these considerations. That is what the primary judge did. It must be emphasised that the precautions upon which he relied did not necessarily extend to heroic engineering repairs; entertaining guests in another part of the premises was a viable alternative (although, perhaps, not so appealing to the owners of an attractive balcony).
7. The orders I propose are: (1) Appeal dismissed; (2) Appellants to pay the respondent's costs.

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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: 10 March 2016