Occupier not required to replace existing annealed glass with safety glass in commercial premises
May 31, 2012
Smith v Body Corporate for Professional Suites Community Titles Scheme 14487  QDC 49
The Queensland District Court was asked to determine whether or not the defendant, being an occupier of a commercial high rise building located in the Brisbane CBD was negligent in failing to replace an existing annealed glass panel located at the entrance to the premises pre accident.
On 21 December 2001, the plaintiff and work colleagues attended a work Christmas party whereby she had consumed alcohol. The plaintiff and some of her work colleagues then left the work function and continued to consume alcohol at a nightclub located in the Brisbane CBD. The court heard that the plaintiff and some of her work colleagues then left the nightclub and proceeded to the entrance of the defendant’s high rise premises located in the Brisbane CBD.
At trial, the plaintiff gave evidence that she was leaning on a glass panel for a couple of minutes, whereupon the glass panel cracked and she fell through the panel, thereby sustaining serious injuries.
The glass panel was located directly adjacent to the front foyer entrance to the defendant’s premises.
The court heard that the defendant’s premises were built in 1971 and was installed with glass panels which were found to be annealed glass which complied with the, then applicable, 1957 Australian Standard.
The plaintiff’s case was however that in 2000 to June 2001, the defendant engaged an architectural firm, together with a builder, to renovate the building entrance, including the replacement of front doors.
In particular, the architectural firm advised the defendant to upgrade the glass to the front doors with new glazed doors which complied with the then current Australian Standard 1288 1994, which required the doors to be of safety glass. Importantly, the architectural plans recorded that apart from the front doors being replaced, the glass in the entrance area was to remain.
The court heard that for the 30 year period between 1971 and 2001 when the accident occurred, there had been no incident or difficulty with the existing annealed glass panels in the defendant’s premises.
The main issue in dispute was whether the defendant was required to conduct an audit of the premises during the preceding 30 year period, which would have ascertained that the existing glass did not comply with the relevant updated Australian standard or the Building Code of Australia in place at the time of the accident.
The plaintiff pleaded that the defendant was the owner of commercial premises with the resulting implication that it owed her a higher duty of care when compared to the occupier of a residential premises.
The trial judge considered a number of authorities including Jones v Bartlett, which involved a residential premises, and also Sauer v Australian Capital Territory and Tweed Shire Council v Hancomatic Music Pty Ltd, which involved public and commercial premises.
In the latter case, where it was also submitted that the defendant should have conducted a safety audit pre accident, the New South Wales Court of Appeal found:
‘In our opinion, any duty of care rested upon Hancomatic as owner ought to have been expressed in the form of a duty to exercise reasonable care in the circumstances. To frame it as a duty to “make appropriate enquiries and conduct a safety audit” was to overstate the content of the duty and thereby skew the breach enquiry.
We recognise, as did the primary judge, that Jones and Ahluwalia involved residential premises. … But the nature of the premises is not determinative of the scope of the relevant common law duty, which remains one that is focussed upon what is reasonable in the circumstances even for commercial premises or premises open to the public.’
The trial judge, after referring to the above authorities, dismissed the plaintiff’s claim on the following bases:
- There was nothing to show that the high volumes of persons going into the defendant’s premises was any threat to the existing glass panels
- Pressure on the glass panel from a seated person leaning on the opposite side of the subject pane of glass fell short of that from a moving person (i.e. the plaintiff) falling on the same panel
- The difficulty with the plaintiff’s argument that a glass audit should have been completed by the defendant pre accident was that there was no convincing basis for stopping at the offending glass panel. Further, the extent of the audits would have been considerable, if all foreseeable risks were to be guarded against.
The court then went on to consider the contributory negligence and quantum issues to assist in the event of a successful appeal.
The court accepted the report of Dr Brian Purssey that the plaintiff’s likely BAC at the time of the accident was in the vicinity of 0.26%.
The court accepted that this was based upon the plaintiff’s more contemporary estimation of her alcohol consumption as set out in her signed statement made soon after her accident.
In accepting Dr Purssey’s evidence, the trial judge accepted the evidence of a witness, Matthew Angell, who was sober at the time of the accident and was standing next to the plaintiff when the accident occurred. In particular Mr Angell’s evidence was that the plaintiff stumbled back and then fell into the glass panel.
In making the finding that the plaintiff stumbled and fell back into the glass panel as a result of her intoxication, the trial judge reduced the plaintiff’s damages by one third.
On the issue of past economic loss, the trial judge, noting that the plaintiff did not place before the court ‘essential facts’, awarded nothing for this head of damage. This was based on the Queensland Court of Appeal decision of McDonald v FAI General Insurance Co Ltd whereby Thomas J categorised the following cases when assessing past economic loss:
‘In a case where damage is capable of precise proof, and a plaintiff fails to produce such proof, no assessment (or a nil assessment) will be made … In cases where some loss has apparently been suffered but the plaintiff has failed to take the trouble to produce evidence that would reasonably be expect to be available, no more than a very conservative estimate of damages will be made … This may be contrasted with the familiar exercise of assessing damages upon issues which of their very nature are incapable of precise proof, such as future economic loss, and quite frequently, past economic loss, where the courts do the best they can on necessarily imprecise matter’.
On the issue of past care and assistance, the trial judge heard evidence that much of the plaintiff’s claim related essentially to keeping her company and attempting to cheer her up, perhaps accompanied by some provision of services that she would have been completely capable of providing for herself.
The court heard that whilst the defendant conceded that in particular cases, Griffiths v Kerkemeyer damages might be awarded for services by way of what might be called ‘emotional support’, it was disputed that allowance ought be made for things like preparing a meal and sitting down to eat it with the plaintiff.
The trial judge thought that ‘emotional support’, unless justified as necessary by appropriate expert evidence or in other special cases, does not come within Griffiths v Kerkemeyer, except to the extent that it is engrafted on provision of physical assistance that a plaintiff needs. The trial judge considered that the evidence of the plaintiff’s mother and former boyfriend did not in his opinion justify the escalation of this aspect of the claim in relation to ‘emotional support’.
This is a sensible decision and again restates the legal position that an occupier of a premises (including a commercial premises) is not required to update the premises to comply with ever changing Australian Standards in relation to glass, in circumstances where the occupier had no notice of existing glass being non compliant with the updated Australian Standard. This is especially so where the defendant occupier had no notice of prior incidents as a result of falling into existing annealed glass.
A different decision may have come about if there were prior similar incidents of school children falling through annealed glass pre accident and / or a child had tripped on a hazard located near the existing annealed glass panel (see Cardone v Trustees of the Christian Brothers). This case is also distinguishable to the previous decision of Hunt v Roads & Traffic Authority of New South Wales, where the occupier had engaged a handyman cleaner, who was not a glazier, to replace a glass bedroom door (broken in 1998) with annealed glass, contrary to the Australian Standard applicable at the time. The court heard in that decision that the occupier should have engaged a suitably qualified glazier who would have recommended replacement of the glass door with safety glass.
In the circumstances, a close perusal of the facts will have to be conducted to determine whether or not an effective response of an occupier was to simply ‘do nothing’.
Authored by Richard Clayton, Senior Associate, Brisbane.
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