Australia: Jones v Bartlett: When do I need to comply with evolving building standards to discharge my duty to a plaintiff?

Last Updated: 30 September 2016
Article by Pat O'Shea

Introduction

Jones v Bartlett stands for the basic proposition that an owner of a residential premises does not owe a duty of care to a plaintiff to ensure that premises are updated to comply with ever evolving Australian Standards and Building Codes. At a basic level, if the residential premises complied with the Building Code and Australian Standards when constructed, then even if the defect which caused the accident is, at the time of injury, non-compliant with current Australian Standards and Building Codes, the owner/occupier will still escape liability.

It is important however for defendant owner/occupiers (and their insurers) not to become too reliant on Jones v Bartlett by overstretching its true implication, particularly in non-residential settings. The cases below examine this issue and highlight when non-compliance with current building standards is acceptable, and conversely, when it is unacceptable.

Jones v Bartlett (2000) 205 CLR 166

The plaintiff was severely injured when he walked into a glass door and it shattered. He was renting the property at the time.

The glass door complied with the building code when it was installed approximately 50 years before, however pursuant to updated standards, it did not comply at the time of the accident. The glass was very thin.

The plaintiff alleged that the defendant landlord was negligent in:-

  1. failing to have an expert examine the premises when the lease commenced which would have identified the hazard; and
  2. failing to ensure that the glass met current standards.

Gummow and Hayne JJ relevant held, in dismissing the plaintiff's claim:-

  1. The landlord has a duty to repair defects that are known or that should reasonably have been known.
  2. Something will be defective if it is dangerous when being used in a regular fashion, and ordinarily would not be dangerous when so used.
  3. The landlord does not need to make regular inspections for defects during the tenancy. The steps a landlord is required to undertake are only those that would be taken in the course of "ordinary reasonable human conduct".
  4. There was no requirement for the landlord to obtain an expert inspection report;
  5. In regards to dangerous defects of which the landlord had known or reasonably should have known, the landlord will be responsible not only for tenants but also third parties.
  6. In this case, the glass door could not be seen as a "dangerous defect".

Skye Helen O'Meara v Dominican Fathers [2002] ACTSC 48

The facts were as follows:-

  1. The plaintiff fell from a balcony at the Australian National University (the University) in Canberra on 25 October 1996.
  2. The plaintiff, a 21 year old senior resident in the college and a student at the University, had attended a sports dinner at the college dining hall earlier in the evening and had then attended a bar area on the first floor of the college afterwards.
  3. Alcohol had been consumed during the evening.
  4. The plaintiff and other people had gathered on an outside balcony area. The plaintiff was wearing a ball gown and a high heeled shoes, and when she endeavoured to sit on the balcony ledge, she fell backwards and fell 5m to a garden area below the balcony.
  5. The plaintiff's claim against the University was that it was negligent in:-
  6. Permitting or allowing the construction of a balustrade that was of insufficient height and of too great a width, so that it formed a method of seating;
  7. Failing to warn students about the dangers of the balustrade;
  8. Failing to prohibit students from sitting on the balustrade when it knew or ought to have known that it was dangerous to do so; and
  9. Generally failing to supervise the students.

The plaintiff pleaded her case on the basis that the fact that the defendant University served and sold alcohol from the first floor bar and tavern meant that the University should have taken measures to improve the safety of the balustrade.

In relation to the construction of the balustrade, there was agreement between two building experts engaged by the plaintiff and the defendant respectively that:-

  1. the balustrade was constructed in or about 1967 and met the standards of the relevant Building Codes at the time of construction, but did not meet the present standards for new constructions. The balustrade was 870mm – 880mm high (the railing height in this matter is 855mm);
  2. the present Building Code of Australia, which was drafted in 1990 and came into force in various parts of Australia from 1993, requires a minimum height of 1 metre for balconies where there is a vertical drop of greater than 3m.

The Trial Decision

Master Connolly held as follows [at para 14]:-

"It seems to me to be consistent with the approach of the High Court in Jones v Bartlett to hold that there was no breach of duty of care in not renovating the balcony to reflect the 1993 Standards, even though there is evidence that, after this tragic accident, the college did make renovations, at relatively modest costs, to increase the height of the balcony by adding a steel rail. The relatively modest costs of replacement glass in Jones v Bartlett did not affect that result. Negligence is not here established merely by failure to implement the latest Building Code of Australia standard."

Master Connolly however stated that that was not the end of the matter. He was satisfied that it was not reasonable to require a general warning in relation to sitting on the balustrade. Master Connolly held that the situation may be different if the plaintiff established on the evidence that the University knew there was a general practice of students using the area to sit dangerously on the balustrade, and knowing of this dangerous practice, took no steps to prevent it and avoid the obvious risk of a student falling.

Master Connolly concluded that the plaintiff had not established that the University was in breach of a duty of care in tort or contract, and entered judgment for the University.

The Appeal

The University appealed the decision of Master Connolly.

Gyles and Weinberg JJ in allowing the Appeal (Crispin P in dissent):-

NEGLIGENCE

Master Connolly should have held on the available evidence that College authorities were aware of students sitting on balustrade for the following reasons:-

  1. The area was known as congregation point, and also known by those congregating there at night that it would be likely some would attempt to sit on balustrade.
  2. Once the risk/danger is known, it is necessary to balance the risk against the reasonableness of requiring precautions to guard against it.
  3. The University didn't lead any evidence to illustrate it had assessed the risk and rejected precautionary measures as unreasonable. The court held that it follows that some of precautions taken after accident should have been taken beforehand (necessary precautions were at little to no cost to the University). Further, any of the precautions taken after accident would have almost certainly prevented it from occurring in the first place.
  4. Whilst University claimed not to have actual knowledge of students sitting on balustrade, it ought to have known of the practice. If the University didn't know about it, they were derelict in exercise of duty of care towards students for whom they were responsible.

CONTRACT

  1. College authorities bore a responsibility, under an implied term (Premises would be as safe for use by plaintiff as reasonable care and skill on part of respondent could make them), to monitor the conduct of persons on the premises so as to be able to recognise dangerous situations, or the development of dangerous practices, in order that appropriate measures could be utilised to guard against them.
  2. If correct in attributing to the University knowledge of the practice of students of sitting on the ledge, then it was clear that permitting such a practice would be breach of the implied contractual term.
  3. Further, given existence of the practice over a number of years, the University ought to have become aware of it and ought to have done something to prevent it. Not doing so was a breach of implied term.

Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2013] QCA 80

The plaintiff fell through glass in the foyer of a commercial building.

When the building was constructed in about 1971 the glass panel complied with the relevant Australian standards. Updated standards only permitted the installation of safety glass, and provided that if existing glass was replaced for any reason then the replacement glass should comply with the current standard.

During renovations approximately 10 years prior to the accident, some other glass in the building was replaced with safety glass.

The main liability issues for the court to consider was:-

  1. whether the body corporate breached its duty of care by failing to arrange an audit of the glass doors and walls to ascertain whether they complied with the prevailing Australian standards; and
  2. what the audit recommendations would have been.

The plaintiff failed to prove that the body corporate acted unreasonably by failing to organise an audit of the glass and then replace the existing glass with safety glass. The Court took into account:-

  1. the extraordinarily large number of people who uneventfully entered and exited the building over 30 years;
  2. the absence of any evidence that the body corporate knew or should have known that the glass had a propensity to break into dangerous shards when sufficient force was applied to it; and
  3. the potentially enormous cost of investigating and removing equally unlikely risks associated with other glass or materials throughout the common areas of the building.

Conclusions/Implications

While Jones v Bartlett is a very helpful case for defendant owners (and their insurers) when there is a breach of current standards but no breach when the building was constructed, a holistic examination of the facts and circumstances of each matter is critical in determining the actual usefulness of such a defence, in particular when the accident occurs in a commercial setting.

In that regard, the comments of Gummow and Hayne JJ in Jones v Bartlett [at 174] are pertinent, and should be relied upon by prudent readers as opposed to my humble conclusions as to the law in this space:-

"What constitutes to taking of reasonable steps will ... depend on all the circumstances of the case. What is reasonable of premises let for the purpose of residential housing may be less demanding than for premises let for such purposes as the running of a school, or the conduct of a hotel or club serving liquor."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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