Swift v Wearing-Smith

Court of Appeal (NSW)|2015-07-20|Before: Meagher JA, Hoeben JA, Simpson JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The contentions of the parties at trial

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.
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.
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.
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.
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

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."
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.
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.
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."
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."
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."
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."
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."
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]).
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."
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."
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.
His Honour then dealt with causation in a manner that has not been challenged on appeal.

Contributory negligence

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.

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

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

Grounds 3-7

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".
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."
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."
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.
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".
I would reject Ground 3 of the appeal.
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.
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.
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.
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]).
The primary judge subjected Mr Swift's evidence to a lengthy analysis. He undertook the same exercise with respect to Mr Dobson's evidence.
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.
I would reject Ground 5 of the appeal.
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.
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.
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.
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."
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.
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 …"
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.
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.
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.
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.
I would reject Ground 7 of the appeal.

Grounds 1, 2 and 8: duty of care

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.
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."
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.
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."
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.
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.
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.
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."
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.
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.
I would, accordingly, dismiss the appeal.
In those circumstances it is unnecessary to consider the Notice of Contention filed on behalf of the respondent.
Having regard to the conclusions of Hoeben JA, I would add the following.
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?

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.
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.
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.
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.
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.
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).
The orders I propose are: (1) Appeal dismissed; (2) Appellants to pay the respondent's costs.

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

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