Judgment date: 31 August 2011

Bader v Jelic [2011] NSWCA 255

NSW Court of Appeal1

In Brief

  • The required elements of negligence in s 5B of the Civil Liability Act, 2002 (CLA) should be addressed in determining whether there has been a breach of duty.
  • The threshold question is whether a reasonable person in the position of the defendant would have, not could have, taken precautions in response to the identified risk.

Background

On 1 March 2005 the plaintiff attended the defendants' home to undertake some telecommunications work.

After being escorted to the upper floor of the unit, the plaintiff returned downstairs to retrieve something from his vehicle. On the way he slipped or tripped on a rug near the front door and stumbled into and broke a large plate glass window next to the door, suffering serious injuries.

Ahead of a person descending the stairs and to the immediate right of the front door is a large floor to ceiling glass plate window, which is approximately the same width as the front door. To the immediate right of that window is a floor to ceiling glass sliding door. The front door is wooden with glass panels. At the time of the plaintiff's accident there were no decals or other visual cues on the plate glass window to draw attention to its presence and to ensure that it was not mistaken for an open door. Nor were there pot plants on the outside of the window as there were subsequently. Nor were the curtains drawn or the blind lowered.

At the time of the plaintiff's accident there were two rugs resting on the tiled floor between the bottom of the stairs and the plate glass window. The plaintiff stumbled on the rug nearer the window, which at the time had a sheet of adhesive material under it.

The evidence of the defendants was that the rugs had been in use for five years before the plaintiff's accident without any other accident occurring.

District Court Decision

The primary judge, Cogswell DCJ, noted that the unit was constructed in 1968 when there was no legal requirement for the window in question to be made of safety glass. However, the primary judge also accepted the observations from the plaintiff's expert, Mr Adams, that for many years new installations for openings such as the plate glass window in question have been marked.

In relation to duty of care the primary judge was satisfied that it was reasonably foreseeable, and far from fanciful, that a focussed business visitor might mistake the plate glass window for a door.

In relation to the standard of care the primary judge quoted from the decision in Homestyle Pty Limited v Perrozzi2, where it was found to be:

"what a reasonable person in the position of the occupier, would in the circumstances, do by way of a response to the foreseeable risk."

In finding for the plaintiff, the primary judge was satisfied that there were steps that the defendants could have taken, such as warning the plaintiff about the rugs and about the presence of the fixed plate glass window. The primary judge added that more significantly the middle plate glass window could have been affixed by the defendants with some form of visual identification to distinguish it from a door.

The defendants appealed the findings of negligence.

Court of Appeal Decision

Macfarlan JA, who wrote the leading judgment for the unanimous Court, noted that the defendants' primary submission was that the primary judge gave no consideration to the CLA. In particular, it was submitted that the primary judge failed to consider the factors in s 5B of the CLA, which provides as follows:

  1. "A person is not negligent in failing to take precautions against a risk of harm unless:
    1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
    2. the risk was not insignificant, and
    3. in the circumstances, a reasonable person in the person's position would have taken those precautions.
  3. 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):
    1. the probability that the harm would occur if care were not taken,
    2. the likely seriousness of the harm,
    3. the burden of taking precautions to avoid the risk of harm,
    4. the social utility of the activity that creates the risk of harm."

Macfarlan JA considered that this ground of appeal was well founded, and that it is highly desirable that express reference be made to the provisions of the CLA. Macfarlan JA noted that the primary judge was satisfied that some of the measures to which Mr Adams, the plaintiff's expert, referred could have been taken on by the defendants, but that this did not address the question to which s 5B directs attention: "whether a reasonable person in the position of the appellants would have taken precautions in response to the identified risk."

Macfarlan JA also identified another issue with the primary judge's decision, in that he specifically stated in his judgment that "the middle plate glass window could have been affixed by Mr Bader or by the Baders with some form of visual identification to distinguish it from a door."  This was despite the fact that the plaintiff's then counsel had previously conceded that:

"I am not running a case that there should have been installed by the defendant, decals or some sort of declaration on the panel to make it apparent. I am saying though that a simple measure, knowing that there's a glass panel there which anyone could mistake for an open doorway, would be to draw the curtains across it or lower the blinds."

For the above reasons Macfarlan JA was satisfied the primary judge's conclusions could not stand, and that the Court of Appeal had to reconsider the plaintiff's claim.

Having decided that the court had to reconsider the plaintiff's claim, Macfarlan JA went directly to the CLA to determine whether the plaintiff could establish negligence against the defendants.

It was noted that the defendants conceded that the risk of an accident such as that which occurred was foreseeable, and that the risk was not insignificant (s 5B(1)(a) and (b)).

In considering s 5B(2)(a), Macfarlan JA found it was of significance that no similar accident had occurred in the five years prior to the plaintiff's accident. Macfarlan JA referred to Bankstown Foundry Pty Ltd v Braistina3 where the High Court pointed out "the weight that will attach to an accident-free history involves a question of fact to be determined in the light of all the relevant circumstances."

Macfarlan JA believed that the accident-free history of five years preceding the plaintiff's accident was of some significance in assessing whether a reasonable person in the position of the defendants would have regarded it as necessary to have the blind pulled down over the windows, and concluded that a reasonable person in the position of the defendants would have regarded the risk of a serious accident occurring as low.

In considering "the likely seriousness of the harm", Macfarlan JA noted that it had been conceded that the defendants would not necessarily have known that the glass was not safety glass, and therefore that it should be concluded for the purposes of s 5B(2)(b) of the CLA that a reasonable person would not necessarily have foreseen that if an accident occurred, the injuries suffered would be likely to be of a high level of seriousness.

Macfarlan JA agreed that the circumstances suggested that a cautious and observant home owner "might" have identified a significant risk, but he was not prepared to find that a reasonable person in the position of the defendants "would" necessarily have appreciated all of the possible matters and put them together to reach a conclusion that the blind should be pulled down to avoid persons such as the plaintiff having an accident.

Macfarlan JA considered the following observations by Gleeson CJ in Jones v Bartlett4 were pertinent to this case:

"There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality." 

For the above reasons Macfarlan JA was not satisfied that the plaintiff had established that a reasonable person in the position of the defendants would, for the purpose of ensuring that the relevant window was not mistaken for the front door, have pulled the blind down over the window.

Macfarlan JA also found that even if the plaintiff had established a breach of duty, he would not have been able to establish causation in any event. In particular his Honour was not satisfied that the plaintiff would not have stumbled if the blind had been down, as this was merely "speculation".

The defendants' appeal was therefore successful on all grounds.

Implications

The decision confirms the importance of addressing the elements in s 5B of the CLA in determining breach of duty.

The decision is a further example that just because there may be steps to make premises safer, this does not of itself satisfy the elements of establishing negligence. The threshold question is whether a reasonable person in the position of the defendant would have taken precautions in response to the identified risk.

The absence of prior similar incidents is a factor to be considered by the court in determining what is a reasonable response to the risk of harm.

1 Macfarlan JA, Young JA and Sackville AJA

2 (2007) 33 WAR 209

3 [1986] HCA 20

4 [2000] HCA 56 

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