KING v STEWART SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and SHELLER JJA 19 and 20 October 1994, 19 December 1994 [1994] NSWCA 164 NEGLIGENCE — duty of care — causation — guest falls from elevated balcony of suburban home- findings as to causation of railing coming away — application of excessive and unexpected force causes bolt to eject — held: Claims fail on causation — no negligence on part of any defendant — cause of ejection of bolt was principally the injured party sitting on railing exerting excessive force — appeal dismissed. NEGLIGENCE — occupier's duty — builder's liability — liability of local authority — young female guest at party falls from balcony of suburban dwelling and suffers injuries resulting in paraplegia — sues (a) occupiers for negligence in conducting party and providing alcohol on and near balcony; (b) builder for negligence in failing adequately to attach balcony railing to prevent its coming away; and (c) local authority for providing certificate following inspection for purposes of Local Government Act 1919 in certifying attachment of balcony railings although unsafe — primary judge (Smart J) finds that bolt attaching railing to wall was expelled from socket by imposition on top of railing of unreasonable force by the action of the injured guest sitting on it and by the application of other such force — rejects contention that railing came away by application to it of ordinary predictable force — findings confirmed by sound of crack heard shortly prior to guest's fall and discovery of bolt in rear yard — on appeal against judgment in favour of each of the defendants — held: (Sheller JA; Kirby P and Priestley JA concurring): (1) The finding of the primary judge as to the cause of the failure of the bolt attaching the balcony railing was not shown to be wrong; (2) Accordingly, it had not been shown that the fall was caused as a result of a defective fixture but the application of force beyond that which a properly fixed rail should properly have been designed to withstand; (3) Accordingly, the claims failed on the ground of causation and were each properly rejected at trial; (4) Semble the Local Authority was not under a duty to inspect the building work to ensure that two and not one bolts had been inserted. Sutherland Shire Council v Heyman (1985) 157 CLR applied; (5) Semble although the builder owed a duty to the guest to secure the railing in accordance with the requirements of good building practice, the collapse of the rail was not caused by any breach of this duty. Hawkins v Clayton (1988) 164 CLR 539 applied; (6) The occupiers of the premises had not failed to take reasonable care to avoid a foreseeable risk of injury to their guest. Stannus v Graham [1994] Aust Torts Rep 81-293 (NSWCA) applied; (7) According, appeal dismissed. Local Government Act 1919, s317A. ORDERS Appeal dismissed with costs. Kirby P Ms Julie King (the appellant) has appealed to this Court against SmartJ's judgment dismissing her claim for damages for negligence which she alleged against the respondents. 2 UNREPORTED JUDGMENTS Mr William Stewart and Mrs Anita Stewart (the first respondents) were the owner occupiers of a suburban residence at 8 Hopkins Street, Speers Point. Mr Alojz Novak and Mrs Margaret Novak, the former owners who had the above property built, were the second respondents. A and M Novak and Co Pty Ltd (the third respondent) was the builder of the house. The Council of the Shire of Lake Macquarie was the fourth respondent. Its successor, the Council of the City of Lake Macquarie, was the fifth respondent. On 13 September 1980, Ms King suffered severe injuries, which rendered her paraplegic. Her injuries arose after she fell from the balcony of the house described when the top railing of the balcony gave way. Smart J made a number of crucial findings of fact which were not challenged in the appeal. THE CONSTRUCTION AND MAINTENANCE OF A SUBURBAN BALCONY The balcony was described, in the old measurements, as being 7 feet 9 inches above ground level (ie. approximately 2.6 metres). It was constructed of a 4 inch (ie 1.6 cm) reinforced concrete slab about 6 feet by 30 feet (ie 1.9 m by 9.2 m). There were three Western red cedar timber railings along the short ends of the balcony and the length of the balcony. Each railing was about 5 1/2 inches (145 mm) deep and about | 1/2 inches (30-35 mm) thick. The long railings were affixed to each of the two vertical posts by two bolts. Where the long and the short railings met, there were mitred joints. The railings were nailed together. At the end of the balcony, each railing was fixed to the brick walls by an iron screw bolt fixed into a timber plug. The Stewarts moved into the house in 1972. In 1975, Mr Stewart decided to repaint the balcony. He scraped off the old paint. He replaced the rusty nails. He also noticed some looseness and movement in the mitred joint. To strengthen this joint, he bolted angle brackets between the vertical posts and the top railing. Mr Stewart also fixed two angle brackets around the two mitred joints of the top railing with two bolts for each arm of each bracket. He used an anti-oxidant paint. Between 1975 and 1978, Mr Stewart painted the railings two or three times. However, he did not perform any other maintenance work on the brackets which joined the short rails to the brickwork. This was because those brackets did not show any signs of rust or looseness. Mr Stewart said that he kept the railings under constant supervision. He regularly checked the railings where they joined the walls in order to ensure their security. THE EVENTS OF THE APPELLANT'S FALL FROM THE BALCONY There was a social function at the Stewart's home on 13 September 1980. Its purpose was to celebrate the twenty first birthday of one of their daughters. Ms King was one of the thirty or so guests who attended their function. The layout of the house was such that it was natural and foreseeable for some of the guests to congregate on the balcony where a keg of beer was also placed. Smart J found that Ms King had been sitting on the top railing of the balcony on the Western side. He found that she had done so for a time before the accident occurred. Two other people, Mr Bradford and another guest, had also been leaning on the balcony railings. Mr Bradford had been half leaning with his buttocks on the top side of the railing in the corner between the brick wall and railing. This had placed a fair amount of weight against it. Smart J found that: "either at the time of the accident or a little earlier some of the weight of at least one other person [had been exerted on the railing]. While I do not attach much significance to the last mentioned it cannot be ignored. It is probable that URJ KING v STEWART (Kirby P) 3 much of such weight probably would have been applied in that half of the rail closer to the mitre joint which did not fail. Mr Bradford's weight was applied close to the connection with the wall and would have combined with the distributed pound force of the plaintiff sitting on the rail." Before the accident, two of the Stewarts' children, Mr J S Stewart and Ms Gail Stewart, had approached Ms King. They asked her not to sit on the railing, presumably because of the obvious safety of overtopping and falling to the ground below. However, according to their evidence, Ms King had waived them away. She chose to ignore their warnings. Mr J S Stewart had later himself repeated this warning. He was also ignored. There were no written signs warning entrants such as Ms King against the dangers of sitting on the railing. But written signs could scarcely be expected in a suburban house and, in any case, the danger of sitting on the railing was obvious. At the time of the accident, a loud crack or noise: an explosion "like a gun going off' was heard. Smart J accepted Mr Stewart's evidence that he found remnants of a wooden plug in the hole in the wall, on the floor of the balcony and on the ground. His Honour found that a substantial force had been placed on the bolt causing it to bear on the plug which shattered, ejecting the bolt. This finding is crucial to the outcome of the appeal. It determines the real cause of the appellant's misfortune. Smart J accepted that, before the accident, the bracket and the bolt were flush against the wall. There had been no indication of any deficiency in the connection between the top Western side railing and the wall which Mr and Mrs Stewart (or anyone else) could reasonably have been expected to anticipate. THE APPELLANT'S CHALLENGES TO THE FINDINGS OF THE CAUSE OF THE RAILING'S COLLAPSE In the Standards Association of Australia's "Australian Standard Rules for Minimum Design Loads on Structures", s3.7.2 states that "Parapets, Balustrades and Railings. Parapets, balustrades and railings, together with members and connections which provide structural support, shall be designed to sustain the following live loads: (a) Handrails, balustrades and the like to platforms, walkways and stairways to which the provisions of ASCA 10 [the SAA Code for Fixed Platforms, Walkways, Stairways and Ladders] apply, and stairways, balconies and landings of private dwellings intended for single occupancy, shall be designed to resist whichever of the following loads produces the most adverse effects: (i) 125 Ibf [pound force] acting inward, outward or downward at any point on the handrail. (ii) 25 Ib/in ft acting inward, outward or downward on the handrail. (iii) The wind load acting on or transmitted to the handrail." Smart J accepted the evidence of Mr Fisher, an expert witness. This was to the effect that a bolt in the timber wall plug which formed the wall connection, would have had to be subjected to considerable force in order to have ejected the timber plug. Smart J also accepted that the wall connection had failed when a load greater than 125 Ibf (pound force) had suddenly been placed upon it. For Ms King, it was submitted that these two opinions of Mr Fisher were unfounded because the combined weight of Mr Bradford and Ms King could not have exceeded 7 1/4 stones. However, as Smart J found that there had also been a third person leaning on the top railing, this submission has no substance. 4 UNREPORTED JUDGMENTS The appellant also challenged Smart J's finding that, if rotational forces of any consequence had been operating, the screw in the timber would have failed. However, this challenge ignores the fact established by the evidence accepted by Smart J that, irrespective of the existence of any rotational forces, the wooden plug would have failed because shear forces in excess of 125 Ibf had been exerted upon it. According to the Australian Standard Rules, it was acceptable if the railing was designed and fitted to resist 125 Ibf. These Rules cannot usurp the definition of the duty of care and reasonable conduct. But they provide a fairly good indication of what might reasonably be required of such a railing subjected to ordinary use. THE HOME OWNERS DID NOT BREACH THEIR DUTY OF CARE The appellant challenged Smart J's finding that: "in the absence of some indication of instability or a bolt or a bracket standing proud or some other indication that something may be amiss I do not think that an ordinary reasonable householder possessing ordinary reasonable skills at minor household repair tasks, such as Mr Stewart, would or can reasonably be expected to engage and pay for expert advice in relation to a problem which he has no inkling exist. That householder would not assume abnormal use or abnormal force being applied to the rails." In Short and Anor v Barrett (Court of Appeal, unreported, 5 October 1990 at 8), Meagher JA held that: "[iJn my view, a householder... is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they either actually know it is unsafe or else receive a warning that it may be unsafe." (emphasis added) In some circumstances, a householder might be expected to check further for the safety of the premises. However, in the facts of this case, I do not believe that the Stewarts were guilty of any negligence in failing to seek expert advice on the safety of the balcony railings. I reach this view because of the absence of any indication that such advice was necessary. The failure of Mr and Mrs Stewart to engage an expert to examine their balcony was not ultimately a relevant cause of the accident in view of Smart J's finding that an excess of 125 Ibf had been exerted on the top railing. Relevantly, an expert could only have been expected to advise the Stewarts to strengthen the live load capacity of the top railing to 125 Ibf - a force which was wholly exceptional, clearly unwise and not reasonably foreseeable. The appellant submitted that the adequacy of the Stewarts' maintenance work on the balcony in 1975 should be measured by professional standards and that Smart J erred because he imposed an unduly low standard of care on Mr and Mrs Stewart. It was submitted that Mr Stewart was obliged to ensure that what he did was performed to a proper standard once he turned his attention to the condition of the railings in 1975. Even if I were to accept this submission, Ms King would still face the difficulty that Smart J found that an excess of 125 Ibf had been exerted on the top railing. In my view, it was not within the scope of the Stewarts' duty of reasonable care to ensure that the top railing could withstand an excess of 125 Ibf - force which was entirely exceptional and not reasonably foreseeable. In Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 21 Mason J said that: URJ KING v STEWART (Kirby P) 5 "[w]here a person takes it upon himself to perform a task in circumstances where a reasonable man would think it necessary to call in an expert the standard of care and degree of foreseeability the law will require of him may well be that of an expert. In 1975, Mr Stewart replaced some rusty nails, applied an anti-oxidant paint and strengthened the mitred joints of the balcony in his suburban home. Any handyman could have adequately performed these tasks upon a similar house. Every weekend, thousands of Australians perform such tasks without benefit of experts. There was no suggestion that the maintenance work was in any way substandard. Indeed, none of the nails or strengthened mitred joints gave way in the accident. The wall bracket which was involved in the accident had not been modified by Mr Stewart. There had been absolutely no indication to him - or anyone else - that it needed attention. Smart J did not err in holding that the householders had discharged their personal duty to ensure that the balcony was reasonably safe. The appellant also challenged Smart J's finding that householders, in the position of Mr and Mrs Stewart, "would not assume abnormal use or abnormal force being applied to the railings". The photographs of the balcony and the surrounds demonstrate quite clearly that the railings were not meant to be sat upon. Indeed, to sit on the railing was clearly and obviously dangerous. I would therefore dismiss this challenge to the conclusions of Smart J. The appellant also submitted that Smart J had erred because he was not prepared to hold that in the absence of a larger bracket, and an extra bolt inserted through it into the brickwork, the accident would have been prevented. There was no need for Smart J to make this finding because he found that an exceptional force in excess of 125 lbf had been exerted on the railing. Once Smart J found that an excessive force had been applied to the railing, it would have been irrelevant to the issue of liability whether a larger bracket and an extra bolt would have prevented the accident. Significantly, Australian standards only required a balcony - and hence the railing - to withstand a 125 Ibf. This the subject railing did. THE BUILDING COMPANY WAS NOT LIABLE Before dealing with the liability of Novak Pty Ltd (the third respondent) I would accept the submission for Mr and Mrs Novak that the appeal, in so far as it named them personally, was misconceived. Smart J recorded: "Senior Counsel for the plaintiff in his final address stated that there was no evidence of negligence against Mr and Mrs Novak personally and that the plaintiff's case was and had to be against the company for negligence." The appeal against the judgment in favour of Mr and Mrs Novak, the second respondents, must therefore be dismissed. The appellant challenged Smart J's finding that the builder, Novak Pty Ltd was not negligent, as it was under no duty of care to visitors to the premises who were using them in a highly dangerous or risky manner, and that Novak Pty Ltd did not owe Ms King a duty of care in such circumstances because the railing was not designed to withstand the forces imposed. The appellant, to the contrary, submitted that such a use of the top railing was foreseeable and that Novak Pty Ltd owed her a duty of care even though the appellant was careless, to some extent, for her own safety. According to the appellant, a reasonably prudent person is obliged to anticipate such reckless conduct and take reasonable steps to avoid or alleviate the risk. Several cases were cited in support of this submission. 6 UNREPORTED JUDGMENTS In Turner v The State of South Australia (1982) 56 ALJR 839 (HC) at 843, a case about an employer's duty to provide a safe system of work, Murphy, Brennan, Deane and Dawson JJ said: "[t]he duty, to whomever it falls to discharge it, is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case." In that case, the employer was found to have been negligent when an employee injured himself when he tried to lift a full drum of diesel. The employee acknowledged that his act was dangerous. Indeed, it was impossible for one person to lift a full drum. The employee had thought that the drum was empty when he tried to lift it. The High Court held that in the circumstances of the case, it was reasonably foreseeable that an employee might try to lift a full drum and thereby injure himself. In Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 38, Windeyer J said that: "[ml]oreover, in ordinary parlance, a thoughtless act when a reasonably prudent man would take thought, an inadvertent act when he would be vigilant, an act done in forgetfulness of something that if he were careful he would not overlook, may amount to negligence on his part. What Lord Wright said was that mere thoughtless or inadvertence is nor necessarily negligence. That is indisputable. The mental processes of the plaintiff and of the defendant in a negligence action, although relevant in so far as they were related to their actual knowledge of the risks of what they were doing, are not decisive of the question whether there was negligence or contributory negligence, for that has to be judged by external and objective standards. The law of negligence is concerned with acts, with conduct that is negligent rather than states of mind." In Bus v Sydney County Council (1989) 167 CLR 78 at 90, Mason CJ, Deane, Dawson and Toohey JJ said: "[s]ince the decision in Dell'Oro the law has progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed." The appellant also relied upon the following passage in Bus, where Gaudron J, at 92, said: "Where inadvertence, even inadvertence amounting to contributory negligence, is itself a foreseeable possibility the duty of care extends to the foreseeable risk of injury by inadvertence. So much is clear from McLean v Tedman [(1984) 155 CLR 306 at 311]. In the present case inadvertence was a foreseeable possibility and there was a foreseeable risk of injury by inadvertence even if usual and tradesmanlike practices were followed. "(emphasis added) In McLean v Tedman (1984) 155 CLR 306 at 311, a case dealing with an employer's duty to provide a safe system of work, Mason, Wilson, Brennan and Dawson JJ said: "it is not an acceptable answer to assert than an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. There was acknowledged even in the days when contributory negligence was a common law defence... There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise URJ KING v STEWART (Kirby P) 7 to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk." An employer undoubtedly owes a very high duty of care to avoid a reasonably foreseeable risk of injury to an employee. McLean v Tedman does not change this basic rule. It merely reflects upon what might be foreseeable in a particular employment situation. It does not hold that an employer has a duty to protect an employee from the foreseeable consequences of a wholly reckless and self-evidently dangerous activity. Lord du Parg in London Passenger Transport Board v Upson [1949] AC 155 at 176 said that: "[t]he correct principle was stated by Lord Dunedin when he said: 'If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions. ' (Fardon v Harcourt-Rivington [(1932) 146 LT 391 at 392]) regard this statement and that of Lord Macmillan in the same case, which was to the like effect, as applying generally to actions in which the negligence alleged is an omission to take due care for the safety of others. It must follow that (if I may repeat what I said in the recent case of Grant v Sun Shipping Co Ld [1948] AC 549 at 567, in this House), a 'prudent man will guard against the possible negligence of others when experience shows such negligence to be common."'(emphasis added) Inadvertent and careless behaviour has to be reasonably foreseeable before it falls within the scope of the duty of care. But plainly dangerous and obviously unsafe behaviour may not. In Cocks v Sheppard (1979) 53 ALJR 591 (HC), the respondent had failed to show reasonable care for his own safety when he turned across the highway without first looking back along the road to check that it was clear. The High Court held that it was not reasonable for him to rely entirely on the rear-vision mirror to ascertain whether he was being overtaken by the semi-trailer. I do not consider that this case, or any of the earlier cited, advances the appellant's submissions. It is clear enough that a builder owes a duty of care to visitors to the premises built to protect such visitors (and other users) from injury arising from reasonably foreseeable dangers caused by the building activities. What is reasonably foreseeable is peculiar to the specific circumstances of each case. In the present case, it was clearly open to Smart J to conclude that the balcony railing and its attachment to the wall was such that it could not have been reasonably foreseeable to the builder, in the circumstances, that someone would sit on the top railing which was only 30-35 mm thick in conjunction with two other adults exerting exceptional force. Even if the bracket had not given way, it would have been extremely precarious to sit on the railing. A person could have easily overbalanced. It was therefore open to Smart J to conclude that a builder was entitled to rely on the fact that a reasonable person would not have sat on the top railing in conditions where other pressure was being applied. It would not have been reasonable to hold a builder liable in negligence for the actions of a very careless person, even if the result of such actions were, in a theoretical sense, reasonably foreseeable. The scope of the builder's duty of care was no more than to protect users of the balcony from the dangerous consequences of reasonably foreseeable conduct. It was not to protect them from the foreseeable 8 UNREPORTED JUDGMENTS consequences of highly careless, risky and exceptional conduct imposing pressures considerably beyond the normal maximum. Any reasonable person would have known that it would have been extremely dangerous to sit on the top railing of the subject balcony, even if the wall bracket had not given way. The railing could have snapped under a person's weight. The mitred joints could also have given way. A builder does not owe a duty to careless people if their actions are not reasonably foreseeable. It is the test of reasonable foreseeability which determines the scope of the duty of care. In this case, it was open to Smart J to conclude that Novak Pty Ltd did not breach the duty of care which it owed to persons such as the appellant because her action of sitting on the top railing - the cause of her misfortune - was not reasonably foreseeable to the builder in the circumstances of this case. THE COUNCIL'S LIABILITY - ADUTY OF CARE ASSUMED The Council of the Shire of Lake Macquarie was succeeded in law by the Council of the City of Lake Macquarie. Since the liability of the successor Council is determined by the liability of the original Council, I will deal with the Councils' liability together. I will refer to them collectively as "the Council". The appellant submitted that Smart J had erred in holding that "the plaintiff has failed to establish the required degree of proximity. Even if I am wrong on this point I am of the opinion that the plaintiff has failed to establish any breach of duty on the part of the Council." I am unable to accept that submission. At the time the house was built, whilst there was a statutory power in the Council to inspect it, there was no statutory obligation to inspect under s317A. A statutory power to inspect is to be distinguished from a statutory duty to inspect. As pointed out by Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469, there is a distinction between policy and operational decisions, although the distinction between them is not always easy to formulate. Mason J said however that "a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints." The Council's inspectors had a discretion as to how they would inspect a completed building to determine whether it corresponded with the plans which had been submitted. The appellant submitted that the basis for the Council's alleged duty of care was that 9 years before the accident, the then owner of the house had sought a s317A Certificate of Compliance from the Council when a survey showed that certain parts of the house were encroaching close to the boundaries of the land. They were not in accordance with the applicable Ordinance. S317A of the Local Government Act 1919 states: "317A. (1) Any person may at any time apply for a certificate to the effect that in the opinion of the council a building in all respects complies with the Act, the ordinances, and the plans and specifications, if any, approved by the council or if there has been any contravention of the Act or ordinances or any departure from the approved plans and specifications that such contravention or departure is not such as need be rectified. (3) The council shall, upon payment of the prescribed fee, as soon as practicable furnish such certificate to the applicant, if the building in its opinion complies with the Act, the ordinances, and the plans and specifications, if any, approved by the council, or if, in its opinion, any contravention of the provisions URJ KING v STEWART (Kirby P) 9 of the Act or ordinances or any departure from the approved plans and specifications is not such as need be rectified. (4) The production of the certificate shall for all purposes be deemed conclusive evidence in favour of a bona fide purchaser for value that at the date thereof the building complied with the requirements of the Act and ordinances. According to the evidence, Mr Murphy, an inspector from the Council, visited the subject house on 7 September 1971. He noted various departures from the approved plans and that the laundry window was too small. He also noted that a perusal of the Council's records did not show that building inspections had been requested at various stages of construction of the house. On 13 September 1971, Mr Parker, another Council inspector, visited the house and noted that all defects previously indicated had been rectified. A Certificate of Compliance was thus issued on 14 September, 1971. The Council did not require that the specified encroachments be rectified. Because of these two inspections, the appellant submitted that the Council owed Ms King a duty of care to ensure that the balcony railings were securely attached. It was argued that the requisite relationship of proximity existed between her and the Council to render it liable for her injuries which were reasonably foreseeable in the circumstances. I am doubtful that this was so. But for the purposes of the appeal, I am prepared to assume that the submission of the appellant in this respect was correct. What follows? THE S317A CERTIFICATE IS NOT A BASIS FOR LIABILITY IN THE COUNCIL The section relied on by the appellant was originally intended to overcome difficulties between purchasers and vendors when a building did not conform with the Local Government Act, 1919, the relevant ordinances and the plans and specifications. In Seeto Construction P/L v Snowy River Shire Council (1981) 47 LGRA 199 at 206, Cripps J, in the Land and Environment Court, observed that under s317A(4), a s317A Certificate not only protected the purchaser but also the owner from the liability to demolish or reconstruct. The terms of s317A provide a Council with two avenues of action. The Council may issue a certificate stating that the defects may remain or it may order demolition or rectification to bring the building within the relevant Act and ordinances before issuing the Certificate. The appellant did not submit that the s317A certificate was inaccurate as there was in fact, no departure from the approved plan and specifications. The building plans approved by the Council were silent on the method of fixing the railings to the wall. The plans merely said: "6" X 1 1/2" Western Red Cedar Handrails. Bolted to 4" X 4" Posts With Galvanised 5 1/2 X 3/8" Mild Steel Bolts." However, the appellant submitted that the Council had a duty to ensure that proper building practices would be adhered to. The appellant faces the difficulty that a s317A certificate merely warrants that there have not been any departures from the plans and specifications or that any departures need not be rectified. It is silent on whether proper building practices were adhered to in the construction. I accept the Councils' submission that: "One is still faced with the situation of a s317A certificate being sought for a specific purpose by an applicant and by a purchaser or mortgagee for the purpose of local government and conveyancing issues so as to be able to protect the purchaser and protect the mortgagee in relation to any breaches of the Act, ordinances or approved plans which latter breach would itself constitute a breach of the Act so as to ensure the integrity of the building they were acquiring as a piece of real estate and the integrity of the 10 UNREPORTED JUDGMENTS mortgagee's security. It didn't go and was never intended to go nor does it go in relation to the new consequences of such a certificate set out in 317AG to the issue in the present case." Furthermore, I accept the Council's submission that a Council has no obligation to act so as to prevent the occurrence of an event which is, in fact, likely to injure and can be foreseen as likely to injure, a person unless the event can properly be seen as one by which that Council either creates the risk of injury to that other or increases that risk. At the time of the inspection there were no visible signs that the railings to the subject balcony were inadequately fastened to the brick walls: cf. Heyman (above) at 489, per Brennan J. The Council thus neither created the risk of injury nor increased that risk. Hence, even if the appellant were to establish that the Council owed her a duty of care, she would have failed in her claim against the Council because it was not within the scope of the Council's relevant duty to ensure that proper building practices had been adhered to. $317A is silent on this issue. To impose a general liability on local authorities for every unsafe feature of building work would be wholly unreasonable. It would effectively render Councils (and hence ratepayers) guarantors and even insurers of builders in their districts. This cannot be - at least without clear statutory provision. Smart J was therefore correct to dismiss the appellant's claim against the Council. CONCLUSION AND ORDERS: APPEAL DISMISSED The challenge to the judgments entered by Smart J in favour of the home-owners, the builder and the local authority have failed. The result is that the appeal must be dismissed. The appellant must pay the respondents' costs. Priestley JA I agree with Sheller JA. Sheller JA BACKGROUND FACTS On the night of 13 September 1980 at premises at 8Hopkins Street, Speers Point, the appellant, Julie Kathleen King, fell from a balcony a distance of about two and a half metres to the ground. She struck the back of her head and suffered spinal injury which resulted in paraplegia. On 10 September 1986 the appellant commenced proceedings in the Supreme Court to recover damages for negligence against the respondents. The respondents were William Stewart and Anita Sybil Stewart, the owners and occupiers of the premises at the relevant time; Alojz Novak and Margaret Inga Novak, the owners and occupiers of the premises at the time when the house with the balcony was constructed there; A and N Novak and Co Pty Ltd, the builder; Lake Macquarie Shire Council and its successor Lake Macquarie City Council. There is no reason in these proceedings to distinguish between the activities of each of these Councils and I shall refer to them both as "the Council". The proceedings were heard by Smart J who gave judgment for the respondents on 17 January 1992 and dismissed various cross claims between the parties. THE PREMISES AT 8 HOPKINS STREET, SPEERS POINT The premises consisted of a brick veneer residence built on a block of land which sloped from the front or northern side to the rear or southern side. The main floor was at the ground level on the northern side. The design of the building took advantage of the slope to provide at the rear under the main floor two vehicle parking areas and between them an area which comprised shower, toilet and other facilities. Projecting from the main floor above the apron outside the southern entrances to the vehicle parking areas and other facilities was the balcony described in the site plan as the rear patio. This was about 2.4 metres URJ KING v STEWART (Sheller JA) 11 above the external concrete apron below and ran the full width of the building from east to west a distance of between 10 1/2 and 12 metres and projected a little less than 2 metres beyond the rear or southern wall of the building. Over the balcony there was a roof supported by about five timber posts. Three red cedar timber rails ran the length of the balcony on its southern side and along both the western and eastern sides of the balcony. Each rail which was 140 - 150 mm deep and 30 - 35 mm thick, was evenly spaced to a height at the top of the uppermost rail of about 870 mm. At the two corners there were mitre joints. The rails on the western and eastern sides were fixed by brackets which were bolted to the brickwork of the building and screwed or bolted to the woodwork of the rail. Relevantly the bracket fixing the top rail to the brickwork at the western side was fixed to the brickwork by a single bolt. Along the southern side of the balcony the rails were bolted to the posts supporting the roof. The house with the balcony was built in 1971 by the respondent, A and M Novak and Co Pty Ltd. During the trial the appellant's counsel stated that there was no evidence of negligence against the owners and occupiers of the premises at that time, the respondents Mr and Mrs Novak. They were joined as respondents in the appeal but the appeal against them was dismissed by consent. The respondent, A and M Novak and Co Pty Ltd, was given leave, without objection, when the hearing of the appeal began, to add a defence of contributory negligence which had been pleaded by the first respondents and the Council and fully litigated at the trial. The site plan of the premises, which was an exhibit, was approved by the Council on | June 1971. On this plan against the depiction of the rear elevation of the building was the legend "6" x | 1/2" Western Red Cedar Handrails. Bolted to 4" x 4* Posts With Galvanised 5 1/2" x 3/8" Mild Steel Bolts". Also an exhibit was a letter dated 2 September 1971 from Charlton Kafer and Sanders, solicitors, to the Council enclosing an identification Survey Certificate and seeking from the Council a certificate under s317A of the Local Government Act 1919. On 8 September 1971 a Council inspector, Mr G Murphy, signed an inspection report form which referred to an inspection for the purpose of a s317A certificate having taken place on 7 September 1971. The request for the certificate seems to have been motivated by a sale of the premises by Mr and Mrs Novak to Mr and Mrs Bint. The report notes that a perusal of the Council's records failed to indicate that inspections were requested of the building during the various stages of construction and noted departures from the approved plans, in particular that stairs had not been provided to the rear patio. The report had on it a hand-written note of 13 September 1971 that the defects indicated had been rectified and that the certificate requested would be issued. As it turned out the defects were not rectified but the plan amended, inter alia to delete the concrete steps shown as running down from the rear patio and substitute an internal stairway and to provide for a shower and toilet facilities at the level of the vehicle parking. The certificate of compliance under s317A was dated 14 September 1971 and forwarded to the solicitors by a letter from Council of that date. The sale by Mr and Mrs Novak to Mr and Mrs Bint proceeded. In June 1972 Mr and Mrs Bint sold the premises to the respondents Mr and Mrs Stewart. THE EVENTS OF 13 SEPTEMBER 1980 LEADING UP TO THE ACCIDENT 12 UNREPORTED JUDGMENTS The occasion of the accident was a party given by Mr and Mrs Stewart to celebrate the twenty-first birthday of their daughter, Debbie. Also present were their children, Gail and John. The appellant was one of the guests. The party was to commence at 7pm. Between twenty-four and thirty guests arrived between 7 and 8pm. Food was distributed and alcoholic liquor was available. Smart J in his judgment recounted in detail and analysed the evidence, which in many respects was conflicting, about the appellant's arrival and what then occurred. His Honour found that the appellant was at the premises for about thirty to forty-five minutes before the accident happened. Before she fell from the balcony she was at a position approximately in the middle of the railing at the short western end. A male guest, Mr Bradford, was in the corner nearer the brick wall of the building. The appellant on occasions and particularly immediately before the accident was sitting on the top rail. Another guest, Miss Howard, was in the vicinity. John and Gail Stewart each approached the appellant and spoke to her at close range and asked or told her not to sit on the rail. Both Mr Bradford and Miss Howard were talking to friends who were probably on the ground below the balcony. Shortly before the accident Mr Bradford was half leaning against the top rail and had a fair bit of weight against it. Smart J was of opinion that there was a combination of the appellant's weight sitting on the top rail, portion of Mr Bradford's weight against that rail and, either at the time of the accident or a little earlier, some of the weight of at least one other person. While he did not attach much significance to the last mentioned it could not be ignored. It was probable that much of such weight would have been applied on that half of the rail closer to the mitre joint which did not fail. Mr Bradford's weight was applied closer to the connection to the wall and would have combined with the distributed pound force of the appellant sitting on the rail. The accident occurred when the top rail on the western end of the balcony came completely away from the brick wall and the appellant fell. The rail was left hanging at an angle of 45 degrees. There was a substantial body of evidence, which Smart J accepted, that "as the accident commenced" there was a loud crack and loud noise or loud explosion like a gun going off. The single bolt fixing the bracket to the brick wall came out. Smart J accepted the evidence of Mr Stewart that he found the remnants of a timber plug in the hole in the wall, on the floor of the balcony and on the ground. His Honour said: "The evidence of Mr Stewart as to the plug remnants and the evidence as to the loud noise or crack point to a substantial force being placed on the bolt which caused it to bear upon the plug and shatter it with the result that the bolt was ejected." EXPERT EVIDENCE The appellant called two engineers Mr TJ Pinzone and Mr RJ Fisher. Mr Pinzone visited the premises on 29 August 1986 and inspected the balcony. He formed the opinion by observation and not by calculation that a larger bracket should have been attached which had two bolts bolted through the timber and two bolts into the wall. This would have given a greater degree of rigidity. He said the joint was inherently weak against rotation because there was only a single fixing to the wall. Two bolts into the wall would mean that with a load on the railing the bracket could resist a twisting motion. With only a single fixing in the wall it was possible for the bracket to twist depending on how tight the bolt was and how rigid the bolt was into the bracket and fixing into the wall. Once it did start to turn it would tend to work the whole joint loose. In his opinion there should have been two fixings into the wall for that kind of joint. Mr Pinzone said that URJ KING v STEWART (Sheller JA) 13 it was his view that if the bolt came away from the wall it came away because it was not firmly attached to the wall. However his Honour said that he was far from satisfied there was any indication prior to the accident that the bolt was not firmly attached to the wall. The rail appeared to be firmly attached to the wall and there was no indication of any insecurity before it actually gave way. Mr Fisher adverted to the provisions of the relevant Australian standard CA-34 Ptl 1969 known as the SAA Loading Code, the relevant part of which was an exhibit, and to good practice. His Honour said: "Tn the Preface to that Code it is explained that the unit called the pound force (abbreviation Ibf) has been used. It is that force which when acting on a body of mass one pound gives it an acceleration equal to that of standard gravity. CL3.7.2 has the effect in this case of requiring the railings together with members and connections which provide structural support to be designed to sustain a live load of 125 Ibf acting inward, outward or downward at any point on the handrail." This interpretation was not challenged. None of the parties submitted that the standard of 125 lbf specified in the Code was too high or inadequate. It was not suggested that the standard was other than an appropriate guide to whether the railing was adequately fixed to the wall. Mr Fisher said that the weakest point was not the connection to the brick wall but the connection to the timber railing providing both connections were done in a proper manner. In his opinion it was necessary to have two bolts into the timber handrail and two bolts into the brick work to satisfy the requirements of the Code. This was normal building practice in 1971. The fixing by means of a single bolt in an L-shaped cleat of a western red cedar railing to the wall was inadequate. By way of explanation he said that a single bolt would allow the L-shaped bracket attached to the rail to rotate. He said that since two bolts had been specified through to the posts he would be looking for the equivalent fixings of the timber rail to the bracket on the western end. He thought it was odd to have two bolts at the posts and only one bolt at the wall. He thought that the inadequacy of a single bolt into the cleat and the brick work would be obvious to anyone familiar with how connections worked in practice. Smart J quoted part of Mr Fisher's evidence. I quote the same passage and some part of the evidence that precedes it because it is critical to understanding the conclusion his Honour reached as to the mechanism of failure. It must be borne in mind that the appellant's case was not that she was sitting on the rail but rather that she was standing on the balcony floor and leaning against it. "Q. Just coming back to the present case, we know that as you understand, tell me if I am assuming wrongly, the plaintiff was leaning against roughly the middle of this top rail. We know that the bolt failed or the connection failed at the wall, right, not at the timber rail, not at its connection to the timber rail, right. What assumptions have you made as to the amount of force that was placed upon that top rail at the time it broke? A. I made no estimation of the force applied to it at the time of failure. Q. You are sure, as I understand it, that it should be so designed as to comply with the Code, that is, to be able to withstand a 125 force point load at any point including right over it in the middle or wherever? A. Yes. Q. You are assuming that a force of less than 125 pound was applied on this particular occasion which caused it to fail? A. I don't know where I made that assumption. Q. Do I take it you have not made that assumption? A. I said I made no estimation of the force that was applied to it when I did my calculations. 14 UNREPORTED JUDGMENTS Q. Even if it had been, you would agree, would you not, that even if there had been two bolts on both the brick work and the wood work, that would have provided 125 pound design requirement? A. Right. Q. That would fail, would it not, if substantially more than 125 pounds was placed upon it? A. That's correct. Q. So that the only evidence as I understand that you are giving to his Honour is that, in your opinion, the method of fixing that was adopted was such that the screw to the railing theoretically should have failed when an excess of 17 pounds was applied to it? A. That's correct. Q. And may we take it that your view also was that so far as the bolt into the brick work was concerned, it also theoretically should have failed when a similar force was applied to it? A. That is not correct. Q. What is the position in relation to that? What do your calculations determine in relation to that? A. I think - the evidence I thought I had given said that the 4 mm diameter bolt into the brick work itself had adequate capacity to resist the 125 pounds force concentrated load in shear. The doubtful part of that joint capacity was the stress exerted on the timber plug immediately underneath the shank of the bolt to resist the load prior to transferring that load to the brick work around it. So my concern with that particular joint other than the fact that it allowed rotation was that it had a timber lug which would have been over stressed in bearing immediately below the steel shank. Q. I understand. So, is this the position that in terms of rotation, it would have a deleterious effect upon the screw in the timber rail rather than upon the bolt? A. Yes. Q. So far as the bolt is concerned, we know it was the bolt that failed and not the screw, you do not suggest that the bolt in shear could not have withstood 125 pounds force but you were concerned as to whether such a force upon the timber plug would cause the timber plug to fail? A. Cause it to be squashed and then allow the bolt to become loose. Q. And pull out? A. And with vibration movement up and down essentially become loose perhaps. Q. And what fall out? A. It could get to that stage, yes. Q. At what pressure? A. That is not appropriate. We are talking about a vibration situation where the rail is either - if it can rotate and it's a bit loose, you have got - you can visualise the force of the steel bracket hitting laterally on the bolt into that fixing. There would be a tendency for it to want to move outwards and become looser. Q. Eventually it will come out? A. It's not improbable that it could come out. Q. To get to that position, the timber plug needs to have had substantial force applied to it for it to lose its ability to hold the screw, it that right? A. That's correct. Q. So that there is [sic] two operations we are concerned with here. One is the assumption that at some point in time substantial force of 125 pounds or more was applied to the bolt thereby causing the timber plug to lose its strength, is that right? A. Assuming the workmanship was good in the first place. Q. And, secondly, then for general movement of the rail that one might expect from people leaning against it and the like to eventually cause a rotational effect on the bolt which would gradually pull it out from the plug? A. That is vibrational rather than rotational effect. Q. Vibrational effect, you mean people leaning up against it from time to time like I am doing on the bar table, is that right? A. That's correct. URJ KING v STEWART (Sheller JA) 15 Q. That would eventually cause the bolt to pull out from the plug? A. It's possible, yes. Q. That leaves the plug inside the hole? A. Yes, that's quite possible. Q. I would like you to assume this, Mr Fisher. I would like you to assume that when the connection failed, it failed with a loud crack like a gun shot, that part of the plug was left in the hole and the rest was found on the verandah in a shattered state, disintegrated, and the bolt was found down the back garden, it had shot out. What is your explanation as to why it failed in that manner, if it did? A. The piece of plug that you said was on the verandah in a shattered condition, was it in a good physical condition but shattered due to damage or had it deteriorated due to weathering and things? Q. We can assume, for the purpose of the argument, the former. It did not appear to have disintegrated as a consequence of weather? A. The only reason I can give to the snap that you refer to or the noise would be the sudden release of the bolt out of the brick work having applied pressure to the steel angle bracket allowing it to flick back. lt would be under stress as it was pushed out. The bracket would want to deform like that. It may have still enough elasticity in the bracket to snap against - back against the timber. Probably the only place at the end I could visualise, that I could imagine a noise occurring. Q. Could I cut it short this way - if it failed in that manner and with those assumptions, that would indicate to you it failed because the bolt was subjected to a very substantial load, and in fact substantially more than 125 pounds? A. May I ask, I did not ask you before - you said the bolt was found in the back yard. The condition, whether the bolt [was] sheared, whether it was in good condition I don't know. Q. No, the bolt was in good condition, was not rusted and was whole? A. It would have been subjected to a considerable force to have pulled it out of the hole when the forces that would have been on it would have been tending to, say, shear force to physically have pulled it out, to have dragged it out of the hole. Q. And shattered the parts of the lug that came out and was found on the verandah? A. That's correct. Q. What you are saying as I understand, if it occurred that way, when in your professional opinion it occurred because a load greater than 125 pounds force was suddenly placed upon it? A. Yes." The thrust of this evidence can be summarised in the following way. Mr Fisher said that the screw to the railing theoretically should have failed when an excess of 17 pounds was applied to it. However the 4 mm diameter bolt into the brick work itself had adequate capacity to resist the 125 pounds force concentrated load in shear. The doubtful part of that joint capacity was the stress exerted on the timber plug immediately underneath the shank of the bolt. He did not suggest that the bolt in shear could not have withstood 125 pounds force but was concerned as to whether such a force upon the timber plug would cause it to be squashed and then allow the bolt to become loose. This would get to a stage where it was not improbable that the bolt could come out. But this required the timber plug to have had substantial force applied to it for it to lose its ability to hold the bolt. As it was put there were two operations. The application to the bolt of substantial force of 125 pounds or more causing the timber plug to lose its strength and then general movement of the rail causing a rotational effect on the bolt which would gradually pull the bolt out from the plug. However according to his Honour's findings this was not what happened. He found that there was no indication that before the accident the bolt was not firmly attached to the wall and that before the 16 UNREPORTED JUDGMENTS bolt was ejected there was a loud crack. On the basis of the assumptions put to Mr Fisher at the end of the passage which I have quoted his Honour was able to conclude that if the bolt when ejected was in good condition, was not rusted and was whole, it would have been subjected to considerable force to have pulled or dragged it out of the hole and to have shattered the parts of the plug that came out and were found on the verandah. His Honour was able to say that Mr Fisher agreed that, if the events just described happened, as his Honour said they did, they occurred because a load greater than 125 pound force was suddenly placed upon the bolt. THE APPELLANT'S CASE Smart J recorded the appellant's case at the trial as follows. The bolt had probably been loosened over a period so that it was loose or loosened or gave way more readily. The evidence of Mr Pinzone showed why it had loosened. Mr Pinzone identified the problem which arose from the use of one bolt. It was possible for the bracket to twist, depending on how tight the bolt as and how rigid the bolt was into the bracket and fixing into the wall. Once it started to turn it tended to work the whole joint loose. Hence, there should be two fixings into the wall. Mr Pinzone said that the wooden plug tended to rot out with time and that the joint as a whole was subject to deterioration because it allowed rotation which could help work the bolt loose. There was a possibility of rotation which must increase if the timber plug began to deteriorate and held the bolt a little less firmly. His Honour said that as he understood Mr Pinzone he was saying that a rotational force did not cause the bolt fixation to the wall to pull out of the wooden plug but that that force gradually had the effect of working the bolt loose. His Honour summarised that part of the evidence of Mr Fisher which I have quoted. Smart J then said: "Mr Fisher agreed, as earlier mentioned, that in the circumstances he was asked to assume (and which I add happened in the present case) such circumstances occurred because a load greater than 125 pound force was suddenly placed on the connection.' Dealing with one submission put by Mr Puckeridge QC who appeared for the appellant both at the trial and on this appeal, Smart J said that there was no evidence which would persuade him that the bolt was not in good condition prior to the accident. His Honour said: *Mr Puckeridge submitted that the main puzzle in the case was that the screw into the rail did not fail but the connection at the wall did. Mr Puckeridge contended that the simple answer was that rotational forces operated on the wall connection. I do not think that this is correct. Mr Puckeridge submitted that if any real force had been applied to the rail, the screw into the rail would have failed. It was contended that as that screw did not fail, this points more to rotational forces operating and operating at the wall connection. In my opinion of there had been rotational forces of consequence operating, the screw into the timber would have failed. Mr Puckeridge submitted that the failure of the wall connection could only be explained on the basis of rotational forces loosening the bolt and also affecting the plug. I do not agree. I think that the shattering of the wooden plug is critical and that the true explanation is the application of much force downwards on the bolt which resulted in the plug being shattered. Mr Puckeridge submitted that the plaintiff had to show and had shown that prior to the accident the bolt was loose or had been loosened and that this was the cause of the connection failure and the accident. URJ KING v STEWART (Sheller JA) 17 Mr Puckeridge urged that I should accept the views of Mr Pinzone in preference to those of Mr Fisher where there was a divergence as Mr Pinzone's views were practical and realistic. Mr Puckeridge correctly pointed out that Mr Fisher regarded the use of one bolt into the brick work as inadequate. I accept that this is so. The question is whether this departure contributed to or caused the accident." His Honour went on to say that while he had received a great deal of help from both the engineers he preferred the views of Mr Fisher. CAUSATION Mr Tobias QC, who appeared for the Council, submitted to Smart J that the purpose of two bolts on the wall and two bolts in the timber rail was to counteract rotational forces as distinct from shear forces and that, if the accident happened due to shear rather that rotational forces, the appellant's case failed on causation. His Honour referred to the possibility that a second bolt and a larger cleat, though primarily designed to resist rotational forces, might assist in the resistance of shear forces or that the use of a second bolt and a second plug might neutralise or restrict the effect of vibration. However Mr Fisher was not asked to deal with these matters. The critical matter was the shattering of the plug which probably took place on the night of the accident. There was no direct evidence that the bolt was loose in the plug prior to the accident or had been loosened and his Honour was not prepared to draw such an inference on the materials before the Court. In his opinion the bolt was not loose prior to the accident nor did he think it had been loosened. Even if this view was incorrect, he was not satisfied that there was any indication prior to the accident the bolt was loose or had been loosened. In particular he was unable to accept the argument that it had been loosened prior to the accident due to rotational effects upon the basis of evidence given by Mrs Anderson that she observed and unidentified person slipping a bolt in and out of the hole. In summary, although a bracket with a single bolt into the brick wall was inadequate, because it was not able sufficiently to resist rotational forces, Smart J was not satisfied that rotational forces had loosened the bolt and there was no evidence upon which it could be said that the bracket could not withstand a shear force of 125 Ibf. Furthermore he found that a force greater than 125 Ibf had caused the bolt to come away. On these findings alone it seems that the appellant should have failed against all respondents. However his Honour did not dispose of the matter at this point in his reasoning. He went on to consider whether there was a duty of care owed to the appellant by the various respondents. DUTY OF CARE The Council The appellant submitted that the Council inspectors should have noticed and reported upon the defective joint on the top western side rail. The deletion from the plan of the stairs to the rear balcony and the addition of the internal stairway which were discovered on the first inspection and entered on the plan on the second inspection, which apparently took place on 13 September 1971, should or must have led to their noticing the defective joint. Smart J quoted s317A (1) and (4) of the Local Government Act 1919 which provide that any person may at any time apply for a certificate to the effect that in the opinion of the council a building in all respects complies with the Act, the Ordinances, and the plans and specifications, if any, approved by the council or if there has been any contravention of the Act or Ordinances or any departure from the approved plans and specifications that such contravention or departure is not such as need be rectified and that the production of the certificate shall for all purposes be 18 UNREPORTED JUDGMENTS deemed conclusive evidence in favour of a bona fide purchaser for value that at the date thereof the building complied with the requirements of the Act and Ordinances. His Honour quoted from Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 435 where Gibbs CJ said " the main effect of the section appears to be to protect a bona fide purchaser for value who has obtained a certificate from action which a local authority might otherwise take in respect of events that occurred prior to the issue of the certificate.....It is enough to say that s317A is not directed to the questions whether the Council owes a duty of care in exercising its statutory functions and if so to whom and in what circumstances such duty is owed." Smart J said that there was nothing in the approved plans which related to the method of fixing the top or any of the three railings to the wall. I should interpolate here that when the hearing of the appeal commenced Mr Puckeridge sought to amend his notice of appeal to challenge this finding in reliance upon the legend on the site plan about the bolting of the hand rails to the posts that I have quoted. The Council opposed this amendment on the ground that the point was not raised at the hearing. No witness was called or asked to say whether the legend would be read by a Council inspector or other person with relevant expertise as requiring that the hand rails be fixed to the brick wall in any particular way. On the evidence as presented at the trial I think his Honour was clearly entitled to come to the conclusion which I have just stated. I do not think it is open to the appellant to challenge the finding in the way she now seeks to and accordingly I would refuse leave to amend. Smart J went on to say that it could not be said that the method adopted of fixing the top rail to the wall by a single bolt departed from the approved plans and specifications. He said that he had difficulty in appreciating how a Council, which made an inspection primarily aimed at dealing with minor building encroachments, owed a duty of care to the appellant to assess whether a particular connection of a bracket to a wall was adequate, where all the Council inspector could see was the head of a bolt through a bracket and into a wall and there was nothing to indicate unsteadiness in the rail. His Honour went further and said that he would not regard the Council as being under a duty to check the bolting of the top railings or the lower railings to the wall. He acknowledged that the position might well be different if there was something which caught the inspector's attention. So far as the amendments noted on the plans were concerned he said that nothing bore upon the construction or bolting of the western side rail. His Honour referred to Heyman's case in some detail and concluded that the appellant had failed to establish the required degree of proximity or any breach of duty on the part of the Council. THE BUILDER The building company also contended that there was a lack of requisite proximity. It was pointed out that the appellant had entered the house about nine years after its construction. While his Honour rejected the proposition that the lapse of time between construction and the accident amounted to a bar he said that in view of his conclusion that the appellant had not proved a causal connection it was unnecessary to deal further with the related questions of the existence of a duty and the scope of any such duty. If he had thought the appellant herself had merely leaned upon the short top western rail with no significant force from anyone else and that the bolt was loose or had been loosened as the result of the rotational effects of forces applied he would have concluded that the builder owed a duty of care to the appellant. The scope of this duty of care did URJ KING v STEWART (Sheller JA) 19 not extend to the visitor using the premises or part of them in a dangerous or risky manner. Having regard to the appellant sitting on the top western side rail and the forces applied to it by others there was no relevant duty of care owed by the builder to the appellant in the circumstances of the case. The rail was obviously not built for such an application of force to the connection. Such application of force rendered sitting on the rail dangerous. THE OWNERS AND OCCUPIERS Turning to the Stewarts his Honour said that there was no dispute that the relevant principles were to be found in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The appellant submitted that the Stewarts were negligent to have the keg on the verandah and to encourage people to congregate there. His Honour did not agree. Further he did not consider that the position of the keg had caused or contributed to the accident. The appellant submitted that Mr Stewart was conscious of security considerations in relation to the balcony. His Honour agreed. Mr Stewart gave evidence that in 1975 he had placed extra brackets on the mitre joints and removed rusted nails. He had painted the timber rails and members and acted to secure the longer rails. His Honour accepted that Mr Stewart was aware that the timber railings on the sides of the balcony had to be adequately secured. This was obvious from just looking at the balcony, its height above the ground and the concrete underneath. His Honour found that Mr Stewart, who attended to all matters of house maintenance, kept the rails under observation, did work as necessary and that there was no indication of any instability or any insecurity. The bolts and brackets appeared to be holding firm. The brackets and bolts were flush against the wall and not proud. There was no evidence of any looseness. The appellant contended that the Stewarts should have obtained expert advice periodically that the rails were safe. This would involve the expert checking the rails and ensuring that they were safe. His Honour accepted that there were some circumstances in which it was necessary that an occupier of premises who allows people to enter them should obtain expert advice and referred to Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 36 per Deane J and Egger v Gosford Shire Council (unreported) Court of Appeal 10 March 1989 per Hope JA at 32-33. However he concluded that in the absence of some indication of instability or a bolt or a bracket standing proud or some other indication that something might be amiss he did not think that an ordinary reasonable householder possessing ordinary reasonable skills at minor household repair tasks, such as Mr Stewart, would or could reasonably be expected to engage and pay for expert advice in relation to a problem which he had no inkling existed. His Honour found that oral warnings were given to the appellant. However she contended that it was a case in which oral warnings were insufficient and that notices should have been erected warning people about the railings and directing them to go to the gazebo. Smart J said that in a home situation such notices would be unusual and not reasonably required. Finally reference was made to Short v Barrett (unreported) Court of Appeal 5 October 1990 and Johnson v Johnson (unreported) Court of Appeal 10 September 1991. His Honour observed that the situation was not one of a kind in which structural defects would be readily anticipated. Mr and Mrs Stewart had moved into what was virtually a new home and Mr Stewart had been active in its maintenance in the nine years up to the time of the accident. He said that Mr Stewart impressed him as a responsible, sensible person who cared for his family and his home. If there had been any indications of instability in the top western side rail or any sign of looseness concerning the bolt or the connection 20 UNREPORTED JUDGMENTS to the wall he would have taken prompt action to remedy it. His Honour held that there was no breach of duty on the part of Mr and Mrs Stewart. APPEAL At the outset of his submissions on the appeal Mr Puckeridge acknowledged that he could not challenge Smart J's findings of fact. Even so, he challenged the finding that the failure of the bolt resulted from the application of a force in excess of 125 Ibf. I can understand why Mr Puckeridge did this. If his Honour's finding in this regard stands the appeal must fail. While initially I had some doubt about the matter I am satisfied that it was open to his Honour to conclude that the bolt was not loosely in place immediately before the accident and that accordingly it was open to accept the conclusions stated by Mr Fisher based on the assumptions that he was asked to make. The appellant sought to demonstrate mathematically that even with the appellant sitting on the top rail the total force applied must have been less than 125 Ibf. It was said that at the date of the accident the appellant weighed about 8 1/2 - 9 stone, that is to say about 119 Ibs or slightly more and that Mr Bradford weighed between 10 1/2 and 11 stone or 147 Ibs or slightly more. Smart J had found that the appellant was at about the middle of the top rail so that it was said no more than 4 1/2 stone of the appellant's weight could have produced a load on the wall connection. It was submitted that with Mr Bradford's weight being taken on his feet and against the brick wall it is highly unlikely that much of his weight was against the vertical side of the rail. His reaction when the rail gave way was to regain his own balance and to grab at the plaintiff. For Mr Bradford to have been able to react so quickly his balance could not have been much disturbed when the top rail gave way. Thus it is said that even if Mr Bradford had one-quarter of his weight against the top rail the weight which he had on the rail when it gave way would not have exceeded 2 3/4 stone so that at most the combined weight of the appellant and Mr Bradford would not have exceeded 7 1/4 stone, that is to say less than a load of 125 Ibf. There is a good deal of speculation about the effect of the combined load of the appellant and Mr Bradford upon the bolt. As against this his Honour found that the bolt was firmly in place and accepted the evidence given by Mr Fisher on that assumption. The appellant has not shown that the conclusion which his Honour reached was wrong. This conclusion disposes of the appeal. The appellant's case depended upon the accident being caused as the result of a defective fixture. His Honour found that it was caused by the application of a force beyond what a properly fixed rail should properly have been designed to withstand. However it is appropriate that I say something about the arguments that were put as to proximity and duty of care. In general, in my opinion, although in some circumstances it might be reasonable to expect guests (especially at a party) to sit on the railings of a balcony, the elevation and obvious danger of doing so in the present circumstances, together with the explicit warning to desist shown by the evidence, made this a risk against which it was not reasonable to require any of the defendants to take excessive precautions. For reasons which are substantially those of Smart J I do not think the Council through its officers was under a duty to the appellant to inspect the wall fitting. Faced with the authority of Heyman's case as to the limited purpose of a s317A certificate the appellant argued that, since the inspection carried out by Council officers had revealed departures from the approved plan and particularly the substitution of an internal stairway for the stairs to the rear patio, the inspecting URJ KING v STEWART (Sheller JA) 21 officers' attention should have been alerted to the fact that the railing was not properly attached in accordance with normal building practice. Accordingly it was submitted that the Council had placed itself in such a position that a duty of care was attracted. The appellant referred to part of the judgment of Mason J, as he then was, in Heyman at 459-460. With due respect I do not think that any feature of the inspection, so far as that appeared from the evidence, imposed upon the Council the duty of care claimed. Like Smart J, I am unable to see how a Council making an inspection primarily aimed at dealing with minor building encroachments owed a duty of care to the appellant to assess whether a particular connection of a bracket to a wall was adequate where all the Council inspectors could see was the head of a bolt through a bracket and into a wall and there was nothing to indicate unsteadiness in the rail. The appellant failed to establish any duty of care of which the Council was in breach. To make good her case against the builder the appellant called in aid a passage in the judgment of Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 578 where his Honour said that a relationship of proximity ordinarily exists between the builder of a residential property and the members of the class of persons who will in future years be housed in it. I accept, for present purposes, that the builder owed a duty of care to the appellant, as a lawful entrant upon the premises, to secure the railing in accordance with the requirements of good building practice at the time of construction. If the railing was not so secured so that the builder was in breach of its duty, his Honour's finding was that this breach of duty did not cause the collapse of the rail. Thus the appeal against the builder fails. The owners and occupiers owed a duty to the appellant to take reasonable care to avoid a foreseeable risk of injury to her: Australian Safeway Stores Pty Ltd v Zaluzna at 488. The appellant argued that when Mr Stewart carried out repairs to the railing in 1975 and took steps to strengthen the mitre joints he should have obtained expert advice which, it should be inferred, would have resulted in some strengthening of the fixing of the railing to the brick wall. This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purposes of discovering unknown or unsuspected defects; per Handley JA in Stannus v Graham (1994) Aust Torts Reports 81-293 at 61564. Smart J found that Mr Stewart kept the rails under observation and did work as necessary and that there was no indication of any instability or any insecurity. The bolts and brackets appeared to be holding firm. There was no evidence of any looseness. Mr Stewart had not fixed the brackets himself or tampered with the existing fitting. Thus it could not be said that he had interfered with something with which an unskilled person was not properly qualified to tamper; compare Papatonakis v Australian Telecommunications Commission, particularly at 36. In my opinion, the appellant failed to establish that Mr and Mrs Stewart were in breach of their duty to the appellant to take reasonable care to avoid a foreseeable risk of injury to her. CONCLUSION The appeal should be dismissed with costs. ORDERS Appeal dismissed with costs. COUNSEL: Appellant: A Puckeridge QC/R Hanlon/G Ballard Respondents: 22 UNREPORTED JUDGMENTS Mr and Mrs Stewart E Petersen N Novak Pty Ltd A Henshens (Solr) Macquarie Shire Council M H Tobias QC/D R Conti SOLICITORS: Appellant: T D Kelly and Co 10 Respondents: Mr and Mrs Stewart Armstrong and Partners N Novak Pty Ltd Bilbie Whifford and Dan 15 Macquarie Shire Council Peter Rees