Bader v Jelic  NSWCA 255
In this matter, the NSW Court of Appeal has highlighted the flaws and deficiencies of a District Court judgment which had not adequately or appropriately considered the provisions of the Civil Liability Act ('CLA') when determining whether a defendant has breached a duty of care.
Jelic ('respondent') was a telecommunications mechanic and attended the Bader's ('appellant') residence ('apartment') on 1 March 2005 to carry out some work. Immediately upon entering the apartment, the respondent walked up a flight of stairs ('stairs') to the upper floor to carry out the work.
To exit the apartment, a person must descend the stairs and then turn left so as to walk through the front door. Directly ahead of the stairs however was a large floor to ceiling plate glass window ('window'), which was approximately the same width as the front door. At the time of the accident, there were no decals or other visual cues to draw a person's attention to the presence of the window. The window was not made of safety glass as the apartment was built prior to a requirement for installation of safety glass coming into effect.
The appellant had placed two rugs over the tiled floor at the foot of the stairs between the stairs and the window. The appellant had also placed a sheet of adhesive material, which he had cut himself, under the rugs to prevent movement of the rugs under foot. The adhesive material did not however completely cover the underside of the rug.
After having been escorted by the appellant to the upper floor of the apartment, the respondent descended the stairs to retrieve something from his vehicle. As the respondent was 'not a social visitor but a man on a mission', he thought that the window was a wide open door.
When near the foot of the stairs, he soon realised that the window was not the door and changed direction to walk towards the front door.
On turning to the left, the respondent alleged that the rug bunched under his foot, causing him to stumble and fall forward through the window.
Cogswell DCJ accepted that that it was reasonably foreseeable and 'far from fanciful' that the window could be mistaken for a door, particularly by a 'focussed business visitor', and that a person may either walk into the window due to lack of markings or fall into the window as a result of the unsecured portions of the rug at the foot of the stairs. His Honour found that the appellant 'could' have taken preventative measures such as warning the respondent of the rugs and about the window. His Honour also found that the appellant could have affixed some form of visual marking on the window to distinguish it from the front door.
On appeal, Macfarlane JA (with whom Young JA and Sackville AJA agreed) was critical of the fact that the trial judge did not give proper consideration to the provisions of the CLA and commented that whilst not strictly necessary, 'it is highly desirable that express reference be made to the provisions of the CLA'.
Whilst the trial judge held that the risk was not 'remote or fanciful' (which arguably satisfied the requirement that the risk is not insignificant – s5B(1)(b) of CLA), the trial judge failed to assess the probability that the harm would occur if care were not taken or the likely seriousness of the harm (s5B(2)(a) and (b) of CLA).
Further, the trial judge's acceptance that the appellant 'could' have taken some of the preventative measures suggested by the respondent's expert did not address the CLA's requirement that a reasonable person in the position of the appellant 'would' have taken those measures in response to the risk (s5B(1)(c)).
His Honour also noted the trial judge's finding that visual cues could have been affixed to the window had not been contended by the respondent at trial.
In light of the above errors and omissions, it was held that the District Court judgment must be set aside and that the respondent's claim be reconsidered by the Court of Appeal. Based on the application of the CLA, the following findings were made:
The parties conceded that the risk of the accident was foreseeable and it was not argued that the risk was insignificant (s5B(1)(a) and (b))
The probability of the harm occurring (s5B(2)(a)) was 'low' as, significantly, there had been no prior accidents of a similar nature in the five year period prior to the accident and it was not put to the appellant that the edges of the rugs which had not been affixed to the tiled floor were unstable
As the appellant was unaware and was not expected to be aware that the window was not made of safety glass, a reasonable person in the position of the appellant would not have necessarily foreseen the likely seriousness of the harm if an accident occurred (s5B(2)(b))
The burden of taking precautions to avoid the risk of harm was not great as the appellant could have simply lowered the blinds over the window (s5B(2)(c))
As an unobscured view through the window would be preferable from an aesthetic point of view, there was some 'social utility' in having the window (s5B(2)(d))
The respondent therefore failed to establish that a reasonable person in the position of the appellant would have pulled down the blind so as to ensure that the window was not mistaken for the door (s5B(1)(c))
As the respondent failed to establish breach of duty, it was unnecessary for the Court of Appeal to consider the issue of causation (s5D). Nevertheless, the court also found that the respondent had failed to establish that he would not have stumbled on the rug had the blind been pulled down over the window (s5D).
The NSW Court of Appeal has emphasised the necessity and requirement for a trial judge, and practitioners either prosecuting or defending a claim for that matter, to carefully consider and specifically address the provisions of the CLA, particularly when assessing whether there has been a breach of duty of care.
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