Novosel v AC Contractors Australia Pty Ltd [2007] ACTSC 18 (29 February 2008)

Last Updated: 7 May 2008

SAUER v AUSTRALIAN CAPITAL TERRITORY

[2007] ACTSC 18 (20 March 2007)

NEGLIGENCE - personal injury - occupiers' liability - public hospital - glass panel in external door - complying with Australian Standard at time of construction - Standard amended - glass no longer compliant at date of injury - whether obligation to replace glass to meet changed standard

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Woods v Multi-Sport Holdings Ltd [2002] HCA 9; (2002) 208 CLR 460

Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 (9 July 2002, unreported)

Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234

Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449

The Commonwealth of Australia v O'Callaghan [2001] WASCA 276

Cardone v Trustees Of The Christian Brothers [1994] ACTSC 85

No. SC 581 of 2000

Supreme Court of the ACT

Judge: Master Harper

Date: 20 March 2007

IN THE SUPREME COURT OF THE )

) No. SC 581 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SCOTT SAUER

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Master Harper

Date: 20 March 2007

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the defendant.

1. The plaintiff brings this action for damages for personal injury against the Australian Capital Territory as occupier of the Canberra Hospital at Garran. The plaintiff suffered severe injuries to his forearms when his body struck a panel of glass in an external door which constituted the main entry to Building 6 at the hospital on 1 December 1998. Building 6 is an administration building, about three stories in height. The plaintiff's wife worked at the pay office on the third floor. The plaintiff had come into the building to talk to his wife, and was leaving when the incident occurred.

2. The plaintiff was born on 27 November 1971. He was 27 at the date of the accident and is now 35. He and his wife Karen had been married for about four years. They had separated a little over a year before the accident. Karen had been working at Building 6 at the hospital for nearly four years by the time of the accident, and the plaintiff had visited her there on many previous occasions.

3. The plaintiff's case is that the defendant's breach of its duty of care to him arose out of two static elements of the door and the floor just inside it. The floor was of brick tiling with a somewhat shiny surface, consistent with having been coated with a clear floor paint or wax, although the evidence does not go so far as to identify the coating. Set into the floor and flush with it, just inside the door, was a hinge-slatted mat 920 mm x 615 mm, described as typical for use in public buildings, set in a galvanised steel frame also flush with the floor. It is apparent from photographs in evidence that the mat was almost the full width of the door, and positioned about one brick width from the door. The plaintiff's case is that the mat constituted a tripping hazard, compounded by the difference in surface between the brick floor and the mat. The evidence does not permit me to make a finding as to the materials from which the mat was made. It is common ground that its primary purpose was to absorb moisture on wet days as people walked into the building and wiped their feet.

4. The consulting engineer qualified as an expert on behalf of the plaintiff referred to the differential in coefficient of friction between the brick flooring and the mat, but there was no expert evidence of the actual coefficient of friction of either surface.

5. The plaintiff's case is also reliant on the quality of the glass panel with which he collided. The panel was of annealed glass about 6 mm thick. The evidence is that the glass complied with Australian Standards when the building was built in about 1972. There have been changes in standards over the years, and by the date of the accident, a much stronger glass, toughened laminated Grade A safety glass, was compulsory for new buildings and for replacement of broken glass in existing buildings. It is common ground that if the glass panel in the door had been of Grade A safety glass, it would probably not have broken on impact.

6. Annealed glass is the type of glass ordinarily in common use. When it is being manufactured it is cooled gradually. This reduces stresses and strains which can otherwise be produced by the cooling process. Laminated glass is constructed from two or more sheets of annealed glass. These are bonded together with an interlay. It will crack and break under sufficient pressure. However the glass will usually adhere to the interlay, preventing it from falling apart or flying through the air. Toughened safety glass is glass which has been treated in such a way that it disintegrates into tiny, harmless particles if fractured. It is also less likely to fracture than ordinary annealed glass.

7. It seems likely from the evidence that the panel of glass with which the plaintiff collided was the original panel. The changes in standards over the years did not carry any obligation to replace existing glass, nor was there any evidence of any general practice by building owners in the public or private sector of doing so.

8. Nevertheless, the plaintiff contends that the defendant owed an obligation to the public to replace glass in such prominent places as door panels in external doors to hospital buildings open to and used by the public. This was particularly so where the original glass had been in place for more than twenty-five years.

9. Much of what happened on the day of the accident is common ground, but there are some areas of significant difference, in particular as to the events immediately prior to the accident, and as to the precise mechanism of the accident. The major dispute is as to the latter: the plaintiff's case is that he tripped on the mat, lost his footing and pitched forward into the glass panel. The defendant's case is that the plaintiff left the building in a furious temper, and punched the panel with his right fist, causing it to shatter. It will be necessary for me to summarise and analyse the evidence as to the circumstances of the accident, and to make findings of fact, although in the final analysis the outcome may be the same regardless of which version of the facts I accept.

The plaintiff's evidence

10. During the period of the plaintiff's separation from his wife, he became involved in a relationship with another woman, Emma. She was also separated from her husband, Matt. The two couples had been friends previously. To complicate matters, Matt had recently commenced a relationship with the plaintiff's wife. In the week or two before the accident, the plaintiff and his wife had been spending some time together and discussing reconciliation. At about 12.45 pm on the day of the accident, Matt telephoned the plaintiff and told him that Karen had been informed that Emma was pregnant. I initially had some difficulty in understanding the plaintiff's evidence about this incident: I had the impression that he was being evasive about it, but it is possible that he saw it as a highly personal matter inappropriate to be aired in a public courtroom.

11. The plaintiff's evidence was that he went to Building 6 at the hospital to talk to his wife about the subject matter of his telephone conversation with Matt. He telephoned her from the foyer of the main building at the hospital and asked her permission to come to her office on the third floor of Building 6. She agreed, and he walked to Building 6 and went in the main entrance door. He took the lift to the third floor. He asked the receptionist to page his wife and in due course she came out. They had a brief discussion at the reception desk and then walked down the stairs to the ground floor. He said in evidence that it had been untrue that Emma was pregnant to him, and that he had been upset during his conversation with his wife. She had also been quite upset. There had been an earlier arrangement for them to have dinner together that night. His wife said that this was off. He then said "So that's it then", and she said "Yes". The plaintiff was upset and frustrated. At that point, he said, he slapped a window directly beside the bench where the discussion was taking place, making quite a loud bang. He said that this was about ten metres away from the front door of the building. He then left, still upset, to attend a meeting at his place of employment, the Canberra Club. He described his manner of walking as his "normal brisk manner". He walked through the open inner doorway of an airlock inside the front entrance. He said that he stepped on to the mat, reaching out with his right hand to open the main door. Both his feet were on the mat. He immediately felt a slipping or falling sensation. He raised his left arm to protect himself from hitting the glass, and his head struck the glass. This made an "enormous" noise.

12. His next recollection was of the door being ajar with his upper torso hanging through the broken upper pane. He recalled that his upper body was angled forward through the glass and slightly tilted to the left. He heard shards of glass falling around him. His right arm was impaled on shards of glass remaining in the door. There was a shard sticking out of his wrist. He could feel blood trickling down his face and realised that he had injured his forehead on the right side through the hairline. He pulled himself very carefully out of the door frame, pulling his right arm off the shards of glass. As he pulled the arm free the muscle fell out of his arm. He turned the arm over and observed the hanging muscle withdraw into his arm, making an audible sucking sound. He took a number of steps away from the building. Blood was gushing from his right forearm, hitting him in the face. Two women, members of the hospital staff, came to his aid. Asked what he said to them, he replied "I said to them that I slipped, I tripped". Many people came to the scene calling for towels. Someone took his watch off his left wrist, upon which he was struck in the face by a spurt of blood. He realised for the first time that his left arm had also been injured. He was taken to the accident and emergency department of the hospital and thence to the operating theatre where a plastic surgeon, Dr Alastair Taylor, attended to his injuries.

13. The plaintiff said that the door opened outward and had a magnetic lock. There was a handle to push but there was no provision for turning it.

14. The plaintiff's recollection as to the inner door of the airlock was that it was chocked open with a white brick, though he conceded that he might have been mistaken about this. His general recollection was that the inner door had always been chocked open when he had visited the building.

15. The plaintiff denied being angry while conversing with his wife. He described himself as upset. It was, he said, a heated discussion, though he denied that he had raised his voice. He said that he naturally had a very loud, animated voice and always spoke loudly. (He did not appear to me to speak in an unusually loud voice while giving his evidence.) He agreed that he raised his voice once, just before he left, when his wife refused to give him Matt's telephone number. Counsel for the defendant put to him that the inner door had been closed, and that he had punched the upper glass panel of that door as he pushed it to open it. The plaintiff denied this. Counsel put to the plaintiff that after punching and pushing open the inner door, he had continued to walk through the airlock at a fast pace in anger, and that when he reached the outer door he had punched that door with his right fist and broken the glass. The plaintiff denied this.

16. Asked what caused his feet to slip, the plaintiff blamed the mat, saying that both his feet were on the mat when he slipped. He said that his feet were arrested and went from under him, and his head struck the glass.

Evidence of the plaintiff's wife

17. The plaintiff's then wife, Karen Wells, signed two statements, and participated in a recorded interview with an investigator. She also gave oral evidence. The first statement was prepared on 3 December 1998, two days after the accident, by Mr Ian Arthur, a member of the hospital staff, as part of an internal investigation of the accident. In the statement Ms Wells said that she and her husband had separated about a year earlier. They had generally been on friendly terms during the separation, but a few weeks earlier she had commenced a relationship with another man. She had told the plaintiff about this. She had previously told him from time to time that there might be a future for them, but she had just been told that his girlfriend of eighteen months was pregnant and that he was the father. The plaintiff had been told (by Matt) that she knew this, and had come to talk to her. She asked him to walk down the stairs to avoid creating a scene at her office. In the course of the conversation, she told him she knew his girlfriend was pregnant. He became angry with Matt. He asked for Matt's telephone number "so that he could have it out with him". Ms Wells refused to give the plaintiff the number. The plaintiff became very angry, agitated and upset. As they reached the bottom of the stairs, he began yelling that he was going to find Matt. The plaintiff then started to walk away, to leave the building. Ms Wells saw him walk to the inner door of the airlock, and observed him to punch and push the door simultaneously, placing his left hand against the door to open it and at the same time punching the glass with his right hand. He punched the glass panel very hard. It made a loud noise. She was surprised that the glass did not break. The door opened and the plaintiff walked through it. Ms Wells turned away and started to walk towards the stairs. Almost immediately she heard a loud bang followed by the sound of breaking glass. She stood still for a second. People started to run out of their offices towards the doors. After a few seconds she heard the plaintiff yell out. She ran with others to see what had happened. The plaintiff was some distance from the doors, with a trail of blood behind him. He was bleeding profusely from a number of places in both arms and his head. She recognised nurses among the people who had arrived to help. She ran to the emergency department to report the accident. She then came back to the scene and stayed with the plaintiff until he was taken away on a trolley.

18. The second statement is dated 15 July 1999, some seven months later. The statement was prepared by an investigator engaged by the defendant. In that statement, Ms Wells said that at the termination of her discussion with the plaintiff, he turned away and walked briskly towards the inner of the two doors. The inner door was closed at the time. She recalled seeing him strike or hit the inner door with both hands to push it open. As she recalled, one hand at least was an open palm. The door swung open with some force. She then began to turn away but recalled noticing out of the corner of her eye the plaintiff's body fall forward. She then heard a very loud explosion which she immediately realised was the glass of the outer door breaking.

19. The recorded interview took place about two months later, on 8 October 1999. It was conducted by Mr R T Ninness, a retired senior officer with the Australian Federal Police. The transcript reveals that the interview was in question-and-answer form. Many of the questions were blatantly leading, for example:

Q 57. So during the time that you have known Scott had you ever seen him at this level of anger?

A. No

Q 58. So he was quite emotional and upset by it all?

A. He was emotional, yes.

20. In the course of the interview, Ms Wells said that at the conclusion of her conversation with the plaintiff she had turned around to walk back up the stairs. The plaintiff had turned and walked towards the doors. He had hit the inner door, punching and pushing it at the same time. She thought that he had punched it with his right fist, making a loud noise. The interview continued:

Q 85. And so that, what did you see then?

A. And I just turned to walk away and out of the corner of my eye I could see him bent forward, that's all.

Q 86. So was he using a great deal of force to go through the first door, is that correct?

A. Yes.

Q 87. Could this force have put him off balance?

A. Yes

Q 88. What happened after you, was he, so you actually saw him go through the first doorway?

A. Yes

Q 89. What happened after you turned to walk up the stairs?

A. Then I heard the bang of him going through the window and all the glass shattering on the ground.

21. Ms Wells also gave oral evidence. She volunteered that prior to the accident sometimes the inner door had been chocked open with a brick and quite often there had been a sign on the door asking people not to slam it. Asked to describe the circumstances again, she said that when the conversation finished, the plaintiff strode to the inner door. He hit the door and walked through, and he pitched forward before he reached the outer door. Ms Wells did not see him reach the outer door, but she heard the noise of the impact, which she described as "loud, huge crashing, bang, glass breaking, shattering". When she went to him outside the building, she said that she heard him say "I tripped".

22. In cross-examination, Ms Wells agreed that she had never had any difficulty walking in or out of the doors of the building, or walking over the mat. She had done so countless times in the course of her employment. She described the plaintiff, when he arrived on the day of the accident, as disturbed and angry. She agreed that as they walked down the stairs he had become more and more agitated and upset, and more and more angry.

The defendant's evidence

23. Evidence was given in the defendant's case by members of the hospital staff. Mr Ian Arthur was assistant director of human resources at the time of the accident. He had, earlier in his career, been a detective senior constable with the Australian Federal Police. He prepared Ms Wells's first statement. His office at the time was on the ground floor of Building 6. He could not recall ever having seen the inner door to Building 6 chocked open by a brick. He had never had any difficulty walking over the mat. He had never heard of any complaints about the mat, and did not regard it as a tripping hazard. He had heard the sound of breaking glass on the day. He had run out and played some part in providing first aid to the plaintiff.

24. Margaret Head was occupational health and safety manager at the Canberra Hospital at the time of the accident, and was also responsible for non-clinical risk management. She had been at the hospital by then for about four years. She conducted an investigation into the accident, starting a little over an hour after it happened, by interviewing the people who had been helping the plaintiff. She prepared a report of her investigation on 2 December 1998, the day after the accident. She took photographs of the broken door and of the floor mat. Ms Head holds professional qualifications as an ergonomist and has published extensively. She is a former president of the Ergonomics Society of Australia. Since the accident, she has been a consulting ergonomist to Telstra Corporation and an occupational health and safety investigator for Comcare.

25. Ms Head noted in her report that the glass panel was replaced on the day of the accident at a cost of $188.00. She obtained and examined the plaintiff's shoes. She described them as Target-brand joggers with no sign of wear on the uppers. The soles of the toe were in good condition. The heels showed some wear. She satisfied herself that the shoelaces were tied at the time of the accident, from the pattern of blood on the laces. She conducted ten trials with one of these shoes, or a similar one, which failed to demonstrate how such a shoe might slip or trip or catch on the brick floor surface or on the mat, or indeed on the line between them. The floor was generally in good condition with no excessive surface grooving or wear. The brick surface was maintained with an anti-skid treatment and was in good condition with no sign of wear. She was satisfied that there had been no spillage or contaminants which could have caused the plaintiff to trip or stumble. The inner door and the outer door required only moderate forward force to open them. She undertook trials using a force gauge. The compressive force required to open both doors was the same, between 5.7 and 7.1 kg.

26. She arrived at the view that the outline of the broken glass remaining within the door frame established that the plaintiff had been standing at full height on impact. If he had tripped and fallen, she would have expected that the glass break outline would have been much lower. I am in some doubt as to whether her undoubted expertise in matters of occupational health and safety and ergonomics extends so far as to qualify her to express an expert opinion about this last issue. She also formed the opinion that the plaintiff had probably struck the outer door with his metal watchband, and that it was this which caused the glass to break. It seems to me that this opinion is little more than speculation.

27. Louise Muir was assistant director of nursing at the Canberra Hospital at the time of the accident, and had an office on level 1 of Building 6. She had worked at the hospital for almost twenty-five years. Her evidence was that she used the entrance doorway to Building 6 every day, and that she never had any problems with the floor or concerns about tripping. At the time of the accident, she was in conversation with two other members of the nursing staff when she heard two loud bangs followed by breaking glass. The interval between the two bangs, she said, was perhaps just a few seconds. The first bang sounded like an explosion and the second was louder. She and the other nurses ran to the scene and attended to the plaintiff's injuries. Ms Muir had no specific recollection as to whether the inner door to the airlock at the entrance to the building had been on occasions propped open with a brick.

28. Robyn Staniforth is a registered nurse and was at the time of the accident working from an office in Building 6 as nursing enterprise bargaining officer with the hospital. She has been a registered nurse for more than thirty years. She worked in Building 6 for about two years, and used the main entrance, she estimated, six or eight times a day. On the day of the accident, she returned to Building 6 after attending to some task elsewhere in the hospital. She saw the plaintiff and Ms Wells inside the building, engaged in conversation. She recalled that the plaintiff was waving his arms and speaking in a heated tone. She went into the kitchen, and came out again to return to her office. The plaintiff and Ms Wells were still there. The plaintiff's voice was getting louder. Ms Staniforth went to her office and sat down. Ms Wells seemed quite calm and appeared to be trying to defuse the situation. Shortly afterwards, she heard two sounds, a bang followed by the sound of glass breaking, without much time between them. Ms Staniforth went out to see what happened, and assisted with the provision of first aid to the plaintiff. She could not remember whether the inner door had sometimes been propped open by a brick. She agreed that it was not unusual to see people coming in and out of Building 6 whom she did not recognise.

29. Timothy Ashmore is the director of facilities management at the Canberra Hospital. He was acting in that position at the time of the plaintiff's accident. As director, he manages thirty-two staff, and is responsible for construction and building maintenance at the hospital. He is an architectural draftsman by training, with some twenty years experience in the management of construction projects for the ACT government. His evidence was that Building 6 was one of the earlier buildings at the hospital, built in the early 1970s. His office for a number of years had been in Building 6. He used the entrance doorway several times every day. He had never had any trouble negotiating the doors or any difficulty with the mat.

30. Mr Ashmore was not a witness to the accident, but undertook a review of the incident soon afterwards. He noted that a call had been placed to a glass maintenance contractor who had attended the site and replaced the broken glass on the same day. There had never been a practice of replacing glass around the hospital as a matter of course. Glass was replaced only because of breakage, or where a refurbishment of the façade of a building was being undertaken. For the purposes of the case, Mr Ashmore obtained a quotation from Woden Valley Glass, a regular contractor to the hospital, to replace all of the glass in the main building, which consists of eight floors plus a basement. This involved almost 1,400 external panes of glass and about 200 internal panes. The quotation was for $412,500.00. Mr Ashmore undertook a calculation from this quote of the likely cost of replacing all of the glass panels in all the buildings at the hospital, and arrived at a figure of about $1,200,000.00. He agreed that he had the authority to order the replacement of glass panels where he thought it necessary. He had never considered replacing the glass in the entrance doorway to Building 6. It had not presented itself as a problem. Mr Ashmore could not recall having seen the inner door to the airlock propped open with a brick.

31. Dr Alastair Taylor was the plastic surgeon who operated on the plaintiff on the day of the accident, and was responsible for his care as a public patient at the hospital thereafter. Dr Taylor provided a written report to the plaintiff's solicitors, and also participated in a recorded interview with Mr Ninness, the investigator engaged on behalf of the defendant. In addition he gave evidence by telephone. Although a treating doctor, he was called in the defendant's case, principally to express an opinion about the mechanism of the plaintiff's impact with the door. He described serious injuries to the plaintiff's forearms. He had told Mr Ninness that he had been informed that the plaintiff had fallen through a glass door. He said in his recorded interview:

... the usual sort of injury one sees in the plastic surgery unit are people who have had a lot of alcohol and punched through a window, and his injuries are very similar to that. I did understand that he did have an argument with his wife in Building 6 and that on leaving Building 6 it was alleged he tripped over and went through the window. He would have to have held both arms out in front of him with his left wrist extended and his right arm more or less flexed or actually, his left wrist was only extended to get the puncture around his volar wrist. On the right side he had a few scratches on his knuckles but most of his injuries were in the volar forearm so his right side went through the window first.

32. The interview with Mr Ninness was conducted on 3 December 1999. The report to the plaintiff's solicitors was about ten days later. In that report, Dr Taylor said:

His injuries are typical of a glass laceration. As to whether Scott punched the window or tripped is difficult to say. However most people that trip tend to get glass laceration or some form of injury to their knees as they fall and also to their forehead. Scott had neither of these.

33. As to the reference to injury to the knees, Dr Taylor made it clear in his oral evidence that he had not been informed that the door had two glass panels, divided horizontally. Taking that into account, knee damage would not have been expected. Dr Taylor thought it likely that the plaintiff's right arm had gone through the glass first. The injuries were consistent with a punch with the right fist, but were not inconsistent with the plaintiff falling and putting his hands up to protect himself. Dr Taylor had no recollection of the plaintiff having sustained any injury to the head, though he conceded that he had been principally focused on the forearms on the day.

The expert evidence

34. Each of the parties qualified and called an expert to give opinion evidence about the likely mechanism of the plaintiff's impact with the glass door. Mr Alan Burfitt gave evidence for the plaintiff. He is a mechanical engineer of many years' experience, and a former senior lecturer in mechanical engineering at the University of Technology, Sydney. Mr Burfitt came to Canberra twice to inspect the site. His first inspection was in November 2004. He was accompanied by the plaintiff, who told him what had happened. He told Mr Burfitt that on the day of the accident the inner door to the airlock had been propped open with a brick, the position it was in on the day of the inspection. Mr Burfitt used a spring weighing scale to measure the force required to open the door slowly. To open the door required 4.5 kg; to hold it open required 2.5 kg, and to jerk it required 10 kg. Mr Burfitt expressed the opinion that the plaintiff's head probably fractured the glass panel.

35. Mr Burfitt was told, either by the plaintiff or his solicitors, that the plaintiff tripped on or near the edge of the floor mat and struck his head on the glass panel, causing it to break. He was also told that the inner door was propped open with a brick, and that the plaintiff struck the glass after walking briskly and unimpeded for some ten metres. Mr Burfitt accepted the plaintiff's version as plausible. He said in his report that tripping and slipping accidents often occur where there is a change in floor surface, that is a difference in the coefficient of friction of adjoining floor surfaces. He also observed on inspection some debris under the mat, which he thought created a potential tripping hazard, presumably by raising the surface of the mat. He thought that if the inner door had been closed, so that the plaintiff had to slow down to open it on his way though, he would not have been able to generate sufficient momentum to break the glass of the outer door.

36. Mr Burfitt said that the occurrence of the accident established that there had been a real risk that a person could accidentally fracture one of the glass panels. The risk of injury had been greater if the inner door was permitted to be left open. He thought that the combination of the mat, a potential tripping hazard, and the change in surface, a potential slipping hazard, with the risk of serious injury from the annealed glass, in combination meant that it would have been prudent for the hospital to replace the glass with grade A safety glass. If the glass in the door had been of that quality, he thought that the plaintiff's injuries would probably have been negligible, probably no more than a bump on the head for a week.

37. Mr Burfitt conducted another inspection in September 2005. In his oral evidence, he said that the bricks were smooth and shiny but not slippery, and that there was a detectable change in friction between the bricks and the mat. He said that "when you get that change in friction, some people can be unlucky and just stumble. The accident could probably have happened if the mat wasn't there ... people trip over their own feet, they slip, they might not be thinking, they might be in a hurry, they might be upset. You might drop something ... you might have an umbrella in your hand ... they get between your feet, I've nearly done it myself with an umbrella." Mr Burfitt agreed in cross-examination that a punch could break annealed glass of the kind that was in the door at the time of the accident.

38. The defendant's expert witness, Dr J R Cooke, is an architect and a senior lecturer at the University of New South Wales. Unusually for such an expert, he is also a graduate in law and is admitted as a solicitor. He inspected the accident site in November 1999. In his opinion the mat and the frame surrounding it had no projections or recesses and did not pose any tripping hazard. He thought it highly improbable that the plaintiff tripped on the mat. He thought that if for some reason a person had stumbled when approaching the door, the resulting impact would not have had enough force to break the glass. He thought that until the accident the risk of accidental human impact with the door had been very low, and that the risk of glass fracture causing injury had been even lower, so that it had been reasonable for the hospital not to replace the glass.

39. When Dr Cooke inspected the scene the inner door was closed, and he assumed that it had been closed on the day of the accident. He was asked whether it would make any difference to his opinion if the inner door had been chocked open. He acknowledged that this would have enabled the plaintiff to have reached a greater speed as he got to the outer door, but he remained of the view that it was highly unlikely that the accident could have happened as stated by the plaintiff, that is by a trip and fall. He agreed that if the plaintiff had had the opportunity of running or moving very quickly towards the outer door, there would have been a higher risk of damage to the door than if the inner door had been shut. Dr Cooke did not test the coefficient of friction of either the mat or the brick surface (nor did Mr Burfitt) but Dr Cooke's view was that there was not sufficient change in the coefficient of friction between the two surfaces to constitute a tripping hazard, nor was the surface of the mat sufficiently rough in itself to do so. He had been informed that the plaintiff was wearing trainers or running shoes of some sort, which he expected would have a moderate level of grip. He did not think that the plaintiff was at any risk of being arrested with unexpected force when his foot came into contact with the mat, so as to cause him to lose balance and fall forward. He was given a summary of the plaintiff's evidence as to how the accident has happened. He said that he did not see that as a likely scenario. He described the annealed glass in the door at the time as very strong glass and not easy to break. He thought it highly unlikely that the glass would break on impact with a person who had tripped and was falling forward. He agreed that a punch might have been enough to break the glass. The punch would be far more concentrated and have much more force.

40. Dr Cooke was cross-examined about the possibility of a person wearing sneakers being affected by the change in texture from a smoother brick floor to a textured mat. He had reported on about 1,500 slipping or tripping cases and this explanation had never been raised before, but he could not absolutely rule it out. A change in coefficient of friction could be significant in a sporting context, for a person running or moving at high speed, but under normal conditions there was no risk. The presence of the mat in fact reduced or removed a potential risk, that of the brick floor becoming a slipping hazard on a wet day.

41. Both Mr Burfitt and Dr Cooke accepted that the glass in the door complied with Australian Standards at the time the building was built. There had been changes in standards over the years, including a requirement introduced in 1989 that safety glass was to be used in door panels where there was a likelihood of human impact. Any new building after 1989 has been required to have grade A safety glass in door panels. Where a glass panel is being replaced the new panel must be of grade A safety glass. However, there is no requirement under the standards for existing glass to be replaced.

Analysis of the evidence

42. It seems to me that the written statements made by hospital staff for the purposes of the internal investigation within a day or two of the accident are likely to be accurate, and to be preferred to statements made six to twelve months later, and to the recollections of witnesses giving evidence at the hearing more than eight years later. I was impressed by the plaintiff's ex-wife, Karen Wells, as a witness, but where there is inconsistency between her oral evidence and the statements she made immediately after the accident, I prefer the former as more likely to be accurate and less likely to be influenced by reconstruction and what she may have been told subsequently by others.

43. The only witness apart from the plaintiff and Ms Wells who gave evidence of seeing or hearing them before the accident was Ms Staniforth, who signed a statement, witnessed by Mr Arthur, on 4 December 1998, three days after the accident. I accept her contemporaneous recollection at that time that the plaintiff seemed to be quite agitated and was speaking fairly urgently with Ms Wells. I accept that Ms Wells appeared calm and seemed to be trying to defuse the situation. I accept that as the conversation went on, the plaintiff's voice became louder and more intense.

44. There was no contemporaneous statement by the plaintiff in evidence. His injuries were extremely serious and it seems unlikely that he would have been capable of making one. Thus the earliest description by the plaintiff available to the Court as to the events was contained in his oral evidence on hearing, more than eight years after the accident. I note that proceedings were commenced in September 2000 and can infer that his solicitors must have taken a statement from him before commencing proceedings, but no such statement was in evidence and there is no basis upon which I am able to infer that the plaintiff would have had occasion to recall or record the events of the day much earlier than that.

45. As to the differences between the plaintiff's evidence and Ms Wells's statement, although I prefer and accept the latter, I should say that I have no reason to suspect that the plaintiff gave evidence which was deliberately false. He was giving evidence about events more than eight years earlier, and even his immediate recollection of them may well have been affected by his life-threatening injuries, loss of blood and shock.

46. I accordingly accept that the inner door to the airlock was closed when the plaintiff left the building, and that it was necessary for him to open it to walk through to the outer door. The evidence of the various witnesses as to whether or not that door was customarily propped open with a brick is equivocal. It is unnecessary for me to make a finding about it. It is enough for me to accept the evidence of Ms Wells that when the plaintiff approached that door, it was closed and he had to open it.

47. I also accept her evidence that the plaintiff punched the inner door as he went through it. I reject the evidence of the plaintiff that he punched another glass panel a considerable distance from that door.

48. I accept that when the plaintiff left Ms Wells, he was angry, agitated and upset. I accept that he punched the inner door of the airlock, and pushed it open at the same time. I accept that very shortly after this, he punched the upper panel of the outer door, and that it was this punch which caused the breakage of the glass. I accept that the momentum of the plaintiff's body was enough to project him through the glass as it broke, causing devastating injuries to his forearms.

49. This analysis of the mechanism of the accident is consistent with the evidence of Ms Muir and Ms Staniforth.

50. Of the expert evidence of Mr Burfitt and Dr Cooke, I prefer that of Dr Cooke. Dr Cooke's evidence accords with common sense and experience. In normal experience of life, one commonly comes across floor surfaces of different materials, such as, here, waxed brick and synthetic matting. Ordinary experience is consistent with the evidence of the employees of the hospital who had walked in and out of the entrance door to Building 6 innumerable times without difficulty.

51. Most people are familiar with the experience of slipping on a slippery floor, and with the soles of one or both feet losing traction and moving forward as the rest of the body remains behind: the sensation of one's feet going out from under one. Most of us are also familiar with the experience of one foot, or both feet, stopping suddenly and unexpectedly, perhaps because the foot strikes an unobserved protuberance such as a low step. In that case the foot or feet stop suddenly but the rest of the body continues forward. This is the essential difference between a slip and a trip.

52. The plaintiff's evidence is confused as to whether he slipped or tripped. The evidence is totally inconsistent with a slip. The plaintiff was wearing rubber-soled shoes and none of the witnesses has suggested that any relevant surface was slippery.

53. The evidence as to any tripping hazard is also unconvincing. I accept that there was on the day of the accident no foreign matter under the mat which might have raised any part of its surface. I am not satisfied that there was anything which might have brought one or other of the plaintiff's feet to a sudden and unexpected stop, such as might have pitched the plaintiff's upper body forward.

54. On balance, I think it is more likely than not that the plaintiff, who I accept was in a bad temper after his discussion with his then wife, punched the upper panel of the inner door, though not hard enough to break it, and a moment or so later punched the upper panel of the outer door, regrettably with sufficient force to do so. This, I find, was the cause of the plaintiff's devastating injuries.

55. My finding that the breakage of the upper glass panel was due to the plaintiff's punch is not the end of the matter, and may not be determinative of the question of negligence. It leaves open the issue of whether it was reasonably foreseeable by the Territory that a person in the position of the plaintiff might, perhaps in a bad temper, punch the upper panel of the door. If so, this could be described as a risk of which the Territory should have been aware, raising the question of what would have been a proper response to the risk.

56. The building had been there for more than a quarter of a century. There had been no similar incident during that period. The building was not one designed or used for the occupation of patients, for example psychiatric patients, who might have been expected to behave in an unusually aggressive manner. It was an administration building. Those who came and went through the front door might have been expected to be mainly hospital or Territory employees, and perhaps secondarily members of their families visiting them.

57. I can see no foundation for an argument that the Territory, or the hospital, should have foreseen the likelihood of a person leaving the building in such a bad temper as to be motivated to punch the glass of the outer door and break it. Nothing like this had happened in the last twenty-five years, and there was no reason to assume that anything like it was likely to happen in the future.

The applicable legal principles

58. A defendant is responsible for personal injury to persons injured through its negligence. A necessary component of negligence is reasonable foreseeability. The injury which the plaintiff suffered was not, in my view, reasonably foreseeable.

59. The defendant's duty of care to the plaintiff was that of an occupier to an entrant - to take such care for his safety as was reasonable in the circumstances, and to protect him from risks of injury which could be foreseen and avoided: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663. The standard or content of that duty is determined according to what the reasonable person would have done in response to a foreseeable risk to the plaintiff, including consideration of the probability of the risk being realised, the magnitude of the consequences, and the cost or inconvenience of remedying the risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 47-48. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 per Gaudron J at 193. It is incumbent upon the court to identify with precision what would have been a reasonable response, in accordance with the Wyong Shire Council v Shirt considerations, to a foreseeable risk of harm: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 per Gummow and Hayne JJ at 611-2. These questions must be considered from the defendant's perspective, with its state of knowledge, to assess whether the defendant acted as a reasonably prudent person would have done: Woods v Multi-Sport Holdings Ltd [2002] HCA 9; (2002) 208 CLR 460.

60. Jones v Bartlett had in common with the present case injuries to a plaintiff who collided with a glass door which complied with Australian standards when the premises were built, but which would have been non-compliant if installed at the time of the injury. The facts were otherwise different: the plaintiff was the son of the tenants of a residential property and the claim was against the landlord. Relevantly for present purposes, Gleeson CJ said at page 177 (para 23):

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. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense.

Recognising that somewhat different considerations apply to residential properties as opposed to office buildings, this passage has some application to the present case.

61. Heydon JA said in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 (9 July 2002, unreported) at para 83:

The proposition that [there] would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response. It is a fallacious reading of Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 to conclude that it holds that if the risk of injury is reasonably foreseeable and removal of that risk by simple and cheap measures is possible but not undertaken, there is a breach of duty. Mason J left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures.

62. Similarly, in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at 246 (para 36), the Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) said:

The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response.

63. In Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449, the New South Wales Court of Appeal (Hodgson and McColl JJA, Tobias JA dissenting) dismissed an appeal by an unsuccessful plaintiff, a resident of a block of home units who was injured when he put his arm out to prevent a sprung glass-paned entrance door from closing. As in Jones v Bartlett and the present case, the glass was ordinary annealed glass which complied with the applicable standard at the time of construction but would not have done so by the time of the injury. In addition to its duty of care as occupier of the common property, the defendant was under a statutory duty to "properly maintain and keep in a state of good and serviceable repair the common property" and to "renew or replace any fixtures or fittings comprised in the common property". The majority held that neither the common law nor the statutory provision imposed a duty to ascertain whether any of the materials of which the common property were constructed could be made safer. The glass entrance door was otherwise in good repair and operating as intended, and the defendant was under no obligation to replace the door or the glass even though the glass was not of the same quality as was required in new buildings.

64. In The Commonwealth of Australia v O'Callaghan [2001] WASCA 276, the Court (Kennedy, Wallwork and Steytler JJ) allowed an appeal and dismissed the plaintiff's claim. The plaintiff had angrily left a Commonwealth Employment Service office and struck a glass door as he did so. The glass shattered and the plaintiff injured both arms. The premises had been constructed sixteen years earlier and, as in this case, complied with the standards in force at the time of construction though not with the standards in place at the time of the injury. The Court held that the cause of the breakage of the glass was the deliberate act of the plaintiff. The Commonwealth had been under no duty to replace the glass.

65. Counsel for the defendant properly drew my attention to a decision of this Court, Cardone v Trustees Of The Christian Brothers [1994] ACTSC 85 (30 August 1994, unreported), a decision of Higgins J. The plaintiff, then a Year 11 school student, almost running to catch up with a friend, caught his foot on a fixed metal bootscraper, tripped and pitched forward into a glass panel forming part of a doorway. Again, the glass was ordinary glass, all that had been required when the building was built in 1966. The Standards had been amended to require safety glass by the time of the injury. Higgins J found that the combination of the bootscraper and the glass panel in proximity to each other created a foreseeable risk of injury which could have been removed cheaply. His Honour found that the defendant should have removed the bootscraper, a tripping hazard, and also that the defendant had been negligence in not replacing the glass panel with safety glass as soon as practicable after it became, or should have become, aware of the safety standard.

66. The defendant in Cardone appealed unsuccessfully, but on grounds unrelated to his Honour's finding about replacement of the glass, which does not seem to have been challenged on appeal.

67. It seems to me that Cardone is distinguishable from the circumstances of the present case for two reasons. Firstly, the premises in Cardone were a school: schoolboys would be expected to behave with greater vigour and less caution than entrants to an office building. Secondly, the glass in Cardone represented a danger because of its proximity to a tripping hazard, the bootscraper.

68. In the present case, it must be borne in mind that the defendant is responsible for what would be in other parts of Australia all of the activities of a State government, and also all of the activities of a local government authority. It is responsible for those activities in the whole of the Canberra City area and throughout the Australian Capital Territory. The argument that the defendant should have replaced the pane of glass with which the plaintiff collided must be viewed as a submission that the defendant was under an obligation to replace the glass in at least the entrance doorways to all of the buildings at the Canberra Hospital. One must then ask why such an obligation would be limited to the hospital, and whether the acceptance of the submission would require the replacement of the glass in at least the entrance doorways to all office buildings occupied by the defendant in the city and suburbs of Canberra. For this Court to arrive at such a conclusion would, it seems to me, amount to an unwarranted intrusion into the responsibilities of the executive government. I am satisfied that the defendant was under no general obligation to replace undamaged and functional glass in the entrance doorway to Building 6 at the Canberra Hospital, or other office and administration buildings at the hospital or elsewhere in Canberra.

Conclusion

69. The plaintiff in the present case has not established that his injuries were caused by any negligence on the part of the defendant.

70. In case I am found to have been mistaken in my findings of fact, I should say that even if had found that the plaintiff's injuries had been caused by a slip or trip on the brick floor or the mat, I would not have been persuaded that there was any negligence on the part of the Territory. There is no evidence that the Territory was on notice that there was anything dangerous about the brick floor or the mat inside the door which might have rendered their position in relation to the door dangerous in the sense that it was likely to cause injury to a person leaving the building. On the contrary, the floor, mat and door had been there for more than twenty-five years without causing injury to anybody. Nor had any combination of floor, mat and glass-panelled door caused injury to others in any of the hospital buildings.

71. Thus if I had accepted the plaintiff's version of the accident, I would have come to the conclusion that it was an unfortunate accident which had occurred without negligence on the part of the Territory.

72. I should also say, in case it should become relevant, that on my findings of fact, had I been satisfied that the defendant was negligence I would have found the plaintiff guilty of a high degree of contributory negligence. I would have been obliged to make a comparison of the relative culpability of the plaintiff and the defendant for the plaintiff's injuries. I would in those circumstances have found that the plaintiff was largely the author of his own misfortune, and that the contribution of the negligence on the part of the defendant was relatively minor by comparison. I would have reduced the plaintiff's damages by 75%.

73. There must accordingly be judgment for the defendant. Costs would ordinarily follow the event. I shall hear the parties as to whether there are any circumstances not presently known to me which might affect the usual orders.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Associate:

Date: 20 March 2007

Counsel for the plaintiff: Mr B J Salmon QC & Ms H L Donohue

Solicitor for the plaintiff: Ken Cush & Associates

Counsel for the defendant: Mr S H Pilkinton

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 7, 8, 9, 10 November 2005,

13, 14 February 2006

Date of judgment: 20 March 2007