THE COUNCIL OF THE CITY OF SYDNEY v NIANIOS MATHEW HALL PTY LIMITED v NIANIOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MCHUGH JJA 11 March 1988, 12 May 1988 [1988] NSWCA 29 Appeal from Common Law Division — Trial by jury — Industrial accident — Handle comes off door and plaintiff falls on back — Damages of $240,392.59 — Appeal by Council on ground that: (i) documents not admitted into evidence; and (ii) no evidence of negligence to go to jury — Held: documents correctly rejected — Open to jury to find Council negligent in that it controlled the door and did not properly inspect and maintain the door handles — No objection to summing-up or to directions given to the jury — Counsel should take objection to directions even though submitted that there was no case to go to jury — Appeal dismissed with costs. ORDERS Appeals dismissed with costs. Mahoney JA The plaintiff was employed by Mathew Hall Pty Limited ("Hall") to work as a plumber on work on the Town Hall House site in Sydney. On 6 October 1978, he was opening a fire door in the building on the site. The door handle and its attachment came away, he fell to the ground, and thereby suffered injuries of a significant nature. On 20 April 1983 he commenced proceedings against, inter alia, Hall and the Council of the City of Sydney ("The Council") On 13 March 1987, after a trial before Clarke J and a jury, the plaintiff's damages were assessed at $240,392.59 and liability was apportioned between Hall and the Council in the proportions 30 per cent and 70 per cent. In due course judgment was entered accordingly. Both Hall and the Council have appealed to this Court against the judgments entered against them. The plaintiff, in his statement of claim, sued Hall in negligence and upon the ground that within reg73(2) of the Factories Shops and Industries Act 1962, it had failed to provide and maintain a safe means of access for the the plaintiff Each of these claims was left to the jury. The plaintiff sued the Council for negligence and it was that claim which ultimately his Honour left to the jury against the Council. On the appeal, the Council has argued two grounds: (1) that His Honour was in error in refusing to admit into evidence documents marked for identification (2), (3) and (4), being a form of contract between the Council and Max Cooper & Sons Pty. Limited, specifications relevant to that contract, and certain invoices and other documents said to relate to the installation of fire doors under that contract; and (2) that on the evidence before the jury, it was not open to them to find that the Council was liable to the plaintiff in negligence On the appeal neither Hall nor the Council contested the apportionment that was made. 2 UNREPORTED JUDGMENTS Hall did not contest that the claim under Reg73(2) was properly left to the jury or the jury's verdict against it on that claim. However, it submitted that there was no case to go to the jury on negligence against it, that the jury's verdict was a general verdict, and therefore, as against it, the verdict should be set aside and a new trial ordered. Mr Kenny QC., for Hall, put this last submission "conditionally" and indicated that, in the event that the judgment against the Council was not disturbed, he would not seek to disturb the judgment against his client. Before coming to the submissions made for Hall and for the Council, I shall refer shortly to the facts as they were before the Court. The building in question was at the relevant time partly built. The evidence in relation to it and the state of the building work was sparse But it appears that Hall had been engaged by the Max Cooper company under its contract to instal certain equipment in the building It had an office in a portion of the building and employed up to about ten men. The plaintiff had worked in the building since some date late in 1977. The building was at least partly occupied by tenants. There was a lift and the tenants used the lift to gain access to their parts of the premises Workers in the building operation used, for the purposes of access, the fire stairs. The plaintiff parked his motor vehicle in a basement area and proceeded from there to the part of the building in which he was from time to time working by means of the fire stairs. On the 6th October 1978, he was working in the basement connecting oil lines into tanks that were on floors 21-3, the top three floors. After he had finished on that day and changed from his overalls, he went down the fire stairway and attempted, as was his practice, to go through a fire door. The door had a lever on it, described as "a long handle" and the door was opened by pushing the handle in an anti 'clockwise direction. At the relevant time the lever was in a horizontal position The plaintiff pulled it down and attempted to pull the door towards himself by the handle. It appeared to be jammed. He gave it "an extra pull". In cross-examination he agreed that he had pulled it "with great force". When he did so, the handle and the door plate came off, he fell to the ground, hit the concrete wall and suffered the injuries in question. A good deal of the difficulty in deciding the case and in deciding this appeal arises from the state of the evidence and the way in which the parties conducted the case at the trial. The evidence given by the plaintiff was the only evidence which was before the Court as to what had been and was happening in the building at the relevant time. Neither Hall nor the Council tendered oral evidence. It was in this somewhat artificial state that the case fell for decision. It did not appear from the evidence whether any of the persons who, on behalf of Hall or the Council, might have given evidence, were then available or able to give useful evidence and nothing was established in that regard. In the absence of a fuller knowledge of the facts, I do not infer any criticism of those who conducted the case for the defendants but the evidence given and the way in which the case was contested at the trial must be borne in mind in determining the issues which have been raised on this appeal. It will be convenient to deal first with the appeal by the Council. As I have said, the Council has argued two matters: the admissibility the of documents marked for identification (2), (3) and (4); and whether there was evidence to go to the jury on the issue of its liability in negligence 1. THE ADMISSIBILITY OF DOCUMENTS MARKED FOR IDENTIFICATION (2), (3) AND (4) UIRKE COUNCIL OF THE CITY OF SYDNEY v NIANIOS MATHEW HALL PTY LIMITED 3 NIANIOS (Mahoney JA) (Mahoney JA) As I have said, these documents consisted, as I have described them, of an agreement, specifications, and invoices and similar documents, The learned Judge rejected the tender, the sole objection being that the documents bore "no relevance to the issues under consideration", His Honour, in dealing with the matter, recorded the basis on which the documents were tendered. He said: "Counsel for the second defendant explains the relevance in this manner: His client was the occupier and the owner of the large building in the City of Sydney. It contracted with, for the purpose of building works, Max Cooper & Sons Pty. Limited. One of the tasks which Max Cooper undertook, under this agreement, to perform was to install the fire door, which has been a focus of attention in this case. He also alleges the document, when looked at with the other documents, to which I will refer, shows that Max Cooper & Sons Pty. Limited installed the locks and handles on the fire door in question". It appears by inference from what his Honour said and it is accepted before this Court that his Honour was called upon to rule upon the admissibility of the documents upon the basis that no oral or other evidence would be called for either defendant and in particular no evidence to establish the relationship of the documents to the facts before the Court. His Honour ruled the documents inadmissible. He pointed out that there was in them no reference to the particular door or handle in question. He concluded that "the evidence is simply insufficient to enable an inference to be drawn". In my opinion his Honour was correct in holding the documents inadmissible on the basis on which they were tendered. The agreement tendered was entered into in 1976. It provided for the Max Cooper Company to complete, "the office building presently under construction at the rear of Town Hall Sydney including the 23 office floors, plant rooms, parking basement and pedestrian areas...". The documents do not disclose nor did the evidence suggest, whether the part of the building now in question had been built before or after that agreement was made: and it did not disclose if the erection of the fire door in question was within the agreement and the works to be completed under it, when it had been completed, or by whom. The documents included a number of invoices for fire doors, the last of which was said for the Council to bear a date in October 1977. It was suggested for the Council that it would have been open to the jury, no other evidence having been called, to infer that the doors referred to in the invoice had been erected by the Max Cooper Company or by some other company under the building agreement. It was submitted that the provisions in the specifications referring to fire doors and to the handles for them provided evidence that would assist in such an inference. Neither counsel at the trial nor counsel before this Court could refer to anything in the documents other than general provisions of the kind to which broadly I have referred. In my opinion, it would not have been open to the jury to infer, from the documents sought to be tendered, that the door in question was erected after rather than before the date of the agreement nor would it have been open to them to infer when the door had been erected. There was no evidence upon which to base a finding as to who had done the work on the building prior to the building agreement and in particular whether the work had been done by the Council, by others in circumstances in which the Council was responsible for what they did, or by a third party in other circumstances. For these reasons, his Honour was correct in rejecting the tender. 2. EVIDENCE OF NEGLIGENCE BY THE COUNCIL 4 UNREPORTED JUDGMENTS The case against the Council lay in negligence. In the statement of claim, the plaintiff pleaded negligence generally, negligence based upon Council's duty as an invitor of the plaintiff into the premises, and negligence based upon the Council's duty as licensor of the plaintiff in respect of the premises. It was clear that the building was the property of the Council. Before his Honour the Council conceded "that the correct status is that of invitor-invitee and, accordingly, it is unnecessary to consider par (7) which is based on license". For the plaintiff, it was argued that liability arose upon the first of the three bases pleaded and that it was "unnecessary to consider the invitor-invitee relationship". The learned Judge, in ruling that there was a case to go to the jury, founded his conclusion upon "the general duty of care". His Honour held that, upon the basis of the decision of the High Court in Papatonakis v Australian Telecommunications Commission 59 ALJR at 201 and Gorman v Williams (1985) 2 NSWLR 662 there was, in the present case, a general duty of care upon Council as occupier to an employee of a sub-contractor and that, upon the basis of the doctrine of res ipsa loquitur, the inference might be drawn that that duty had been breached. In summing up to the jury his Honour put the matter somewhat differently. His Honour said: "The relationship between the plaintiff and the second defendant is a relationship between an occupier of the premises, that is one who has the control of the premises, and an employee of a building of a building company working on those premises. That occupier, like the employer, owes a duty to take reasonable care to see that the employees of building companies on the premises are not injured." Subsequently, considering what the jury might determine in relation to breach of that duty, his Honour said: As against the second defendant, it is different. As an occupier, it owed a duty to the servants of its contractors, or contractors on the site, to take reasonable care for their safety. The notion of 'reasonable care' is introduced. In this case, the plaintiff says 'I have proven prima facie' - that is on the surface, I have shown a case to answer - I have proved prima facie that an event occurred which speaks of negligence and unless the defendant can show that the event occurred without negligence, I have proved (because the onus always lies on the plaintiff) my case of negligence against the person in control of the door'. He puts it this way: he says, 'Well, the occupier had control of the premises, therefore the occupier had control of the door; therefore the person who had the power to examine and inspect and maintain the door handle was the occupier. Door handles do not come off when people pull them in the normal course of human affairs, unless there is something wrong with them, and there would not be something wrong with them if there had not been some negligence on the part of the occupier'. So he says, and I quote 'I went down there, I took hold of the door handle, I pulled. It didn't react. I pulled again and it came off in my hand. In the normal course of events, this would not have happened except for the negligence or the failure on the part of the occupier to maintain the door handle in a safe condition'. That, really, is what one speaks about when one is referring to this doctrine of res ipsa loquitur. The thing speaks for itself. It means no more than that the plaintiff has proved an event which would not normally occur in human affairs without negligence on the part of the person in control of the situation and, that being so, a jury or a fact finding tribunal is entitled to infer that negligence Then, in an evidentiary sense, but not in the legal sense, the onus lies on a defendant to say, 'Well, that happened, we agree, that this is the reason for it', and to lead evidence to answer what we call the res. To answer the inference of negligence and the plaintiff says here, 'Of course, here has been absolutely no answer at all'. His Honour added: UIRKE COUNCIL OF THE CITY OF SYDNEY v NIANIOS MATHEW HALL PTY LIMITED & NIANIOS (Mahoney JA) (Mahoney JA) ... the person who, in a normal situation, would be thought to know about this door handle would be the person in control. That is the second defendant, and, because he has not called any evidence, you are entitled to infer that he has no witness available who can assist his case. But, in any event, he does not lead any evidence to answer any inference that you think should be drawn from the fact of the happening. No objection was taken to his Honour's summing up in any relevant respect. Therefore, the case went to the jury upon the basis that it was open to them to find against the Council if they were of opinion that the accident had happened because of the negligent failure of the Council to maintain the door handle in a safe condition. The suggestion was that they could find the Council under a duty so to inspect and maintain the handle that, within the bounds of reasonable care, the plaintiff did not suffer injury. This involved that, in the circumstances of this case, reasonable care required that the Council inspect and maintain the door handle and that had it inspected it, the particular defect would have been apparent. Before this Court Mr Crumpton QC put the Council's submissions in various ways but in substance he put three things: there was no evidence on which the jury could find the Council relevantly in control in respect of the door; that they could not find that it was reasonable to expect the Council to inspect and maintain the handle; and that they could not find that, on a reasonable inspection, the particular defect would have been discovered. It was open to the jury to find that the Council had the relevant control of the door. In the absence of the documents marked for identification (2), (3) and (4), there was little if any evidence as to what building work, other than that by Hall, was being done on the premises, who was doing it, or under what circumstances. In particular, having regard to such evidence as there was, the jury could infer that the Council, as owner of the premises was relevantly in control of the door. In addition counsel for the Council had conceded that the Council was an occupier of the premises in such a position as to invite the plaintiff upon them and to be responsible to him as invitor. Given the state of the evidence, the strong inference was - at least it was open to the jury to find - that the Council as owner controlled the relevant door. It was also open to the jury to find that, in this case, it was reasonable to expect that the Council would inspect and maintain door handles of this kind. It may well be that door handles and doors and items of that kind are not items which reasonably an owner of premises is expected to subject to regular inspection. But the present door and its handle were not ordinary items. The door was a heavy door which, it might be foreseen, would require some force to open. It was proper to see that, on occasions, workmen who expected to go through it might find it necessary to use more than the force ordinarily to be used in the opening of it. The circumstances generally were such that if the handle came off, serious injury might result and so reasonable care in the inspection and maintenance of it would be appropriate. The probabilities are also that, had a proper inspection been made, the defect which must have existed in the handle apparatus would have become apparent. I am conscious that no evidence was called to show what the defect was or why the lock came away in the plaintiff's hand. It may have resulted from faulty equipment fixing or maintenance: it may have resulted from a latent defect in the material. But, in my opinion, it was open to the jury to conclude that, as a matter of probability though not certainty, an appropriate inspection would have brought out the defect. The jury might, for example, conclude that Council should from 6 UNREPORTED JUDGMENTS time to time have tested the door handles of such doors by subjecting them to the kind of strong pull apt to be applied to them by a person faced with some difficulty in opening them. I do not mean by this that great force would be required: the jury would have been entitled to conclude that the kind of force which the plaintiff, having his tools in one hand, probably applied, would be an appropriate test for this purpose. This leaves the question whether, had the Council had a system of inspection of this kind, that system would have prevented - the damage to the plaintiff. The jury were entitled to think that probably it would. They might think that what happened to the door, namely, the detaching of the handle and the plate, was the kind of thing apt to be disclosed once and for all by the application of appropriate force to the handle. They might infer that there had been no system of inspection because, had there been such, the handle would probably have come off with the plate attached when first it was subjected to the relevant force. Therefore, in my opinion it was open to the jury to find for the plaintiff against the Council upon the basis of the directions given by the learned Judge. It remains to consider whether those directions were wrong and whether the plaintiff can now take advantage of any error in them. No submission has been made by the Council in this appeal that the learned Judge was in error in the directions he gave. At least, no argument was advanced in support of any such submission. Had the matter been contested upon the conceded basis that Council owed to the plaintiff the duty of an invitee, directions to the same practical effect would no doubt have been given by the learned Judge and, no doubt, the jury would have arrived at a similar conclusion. But the learned Judge gave his directions upon the basis of, as I have indicated, there being a general obligation on the Council in negligence. In my opinion, the parties did not object to the case proceeding on that basis: the matter went to the jury upon the basis that liability should be determined in that way. Were it not for the fact that the Council had earlier asked for a verdict by direction, this I think would be clear. No objection was taken to the directions give by the Judge and, from the general tenor of the material before the Court, the trial was conducted on such a basis. What was said and done in dealing with the submission that there should be a verdict for the Council by direction, did not, in my opinion, relieve counsel of the obligation, if objection was to be taken to the jury dealing with the matter as the Judge had directed them, of taking the appropriate objections and suggesting what should be the directions to be given. The contrary was not suggested in chief for the Council before this Court. In reply, when the point was put to counsel for the Council, it was submitted that in effect, counsel had been relieved of the ordinary obligation to indicate objection to the course of the trial by what the Judge had said in his ruling. But, I think, nothing was urged in support of that submission. The fact that objection is not taken to directions is, of course, relevant to but not determinative of the exercise of the Court's discretion to order a new trial for error. But what is here immediately in question is different. It is whether the summing up is an indication of the basis on which the trial was conducted and supports the inference that distinctions of the kind now suggested were not suggested for consideration by the jury at the trial. I see nothing in the material before the Court to indicate that there was seriously in contest the general obligation of the Council in negligence. I would have expected that, had that been in contest, counsel would have taken objection to the form of the summing up. A general obligation in negligence was one of the bases of UIRKE COUNCIL OF THE CITY OF SYDNEY v NIANIOS MATHEW HALL PTY LIMITED ¥ NIANIOS (McHugh JA) (McHugh JA) obligation pleaded and it is clear that it was maintained by the plaintiff throughout I do not think that, in the circumstances, the Council should be permitted to depart from the basis upon which liability was determined at the trial. But, however this be, I accept that there was an obligation in negligence by the Council to the plaintiff as the employee of the sub-contractor in the circumstances of this case. I do not think it necessary to add to what the learned Judge said in this regard. For these reasons, the appeal by the Council fails. I come now to the appeal by Hall. Mr Kenny QC. for Hall submitted that, for the substantial reasons to which I have referred, the verdict against the Council was correct. As I have said, he indicated that, if that verdict stood, he would not seek to have set aside the verdict and judgment against his client. It may be thought that there would be little prospect of, on a retrial, a different verdict being obtained by Hall upon the statutory basis of liability. However this be, it is proper in my opinion that the appeal of Hall be, in these circumstances, dismissed. The appeal of Hall and the Council should therefore each be dismissed with costs. Priestley JA I agree with Mahoney JA. McHugh JA I agree with the orders proposed by Mahoney JA and with his reasons. The appeal of Hall and the Council are each dismissed with costs.