STATE OF NEW SOUTH WALES v DALY and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, POWELL JA and SHEPPARD AJA 5 August 1997, 3 September 1997 [1997] NSWCA 294 Negligence — personal injury — occupier's liability — injury from splinter detaching from timber floor — whether trial judge's finding that risk not reasonably foreseeable negates finding of verdict against appellant Plaintiff injured by detachment of splinter whilst sliding along timber floor at disco organised by second respondent - disco conducted in public school hall owned by appellant - trial judge found verdict in favour of plaintiff against each of the defendants and apportioned one quarter to the state and three quarters to the club. On appeal, appellant argued that trial judge's finding had effectively negated negligence on the part of the state - new issue raised by second respondent by notice of contention as to the cause of detachment of the splinter that injured the plaintiff - whether defect in floorboards reasonably detectable - whether condition of floorboards brought to attention of appellant. Held, appeal allowed: The duty owed by the appellant was one of reasonable care and the trial judge's finding that the risk (ie, lifting of the floorboards due to fungal decay) was not reasonably foreseeable negated a finding of negligence against the appellant. Mason P Allan Daly, the first respondent ("the plaintiff') was injured by a wooden splinter as he slid along the floor of the assembly hall at La Perouse Primary School. He was attending a disco organised and conducted by the second respondent, the Matraville Tigers Junior Rugby League Club ("the Club"). The school premises were owned and occupied by the appellant ("the State"). The Club had paid a hiring fee of $20 to the School. The floor in the assembly hall, which was occasionally used as a gymnasium, had been built about 20 years earlier. The floorboards were polished blackbutt (eucalyptus pilularis) cut in lengths that were 2.75m long and 57mm wide. The boards were tongued and grooved and nailed using a hidden nailed technique. The plaintiff, who was aged 9 at the time, was sliding around on the polished floor with a number of the boys. Sometimes he slid along his side, sometimes on his stomach. The boys had been doing this for about 20 minutes notwithstanding occasional remonstrances from adults from the Club who were organising the disco. As the plaintiff slid on his stomach, roughly parallel with the line of the floorboards, a splinter lifted from the side edge of one of the boards. It penetrated his abdomen, bladder and bowel, and also injured his left leg. The plaintiff sued the State as the body responsible for the safety of the school, for failing to maintain safe flooring and failing to maintain an adequate system of maintenance or inspection of the floor. He also sued the Club for its failure to exercise adequate supervision. The learned trial judge found a verdict for $35,000 in favour of the plaintiff against each defendant. The parties at trial had agreed that if entitled to a verdict, the plaintiff should receive $35,000 in damages. A claim by the defendants that damages should be reduced for contributory negligence had previously been rejected. The defendants claimed contribution 2 UNREPORTED JUDGMENTS from each other pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946 and his Honour determined that it was appropriate that liability be apportioned as between the defendants as to one quarter to the State and three quarters to the Club. By way of contribution the Club was ordered to pay directly to the plaintiff $26,250 and the State was ordered to pay directly to the plaintiff the sum of $8,750. THE APPEAL The State contends that it ought not to have suffered a verdict in favour of the plaintiff, and that the consequential order by way of apportionment ought also to be set aside. Although it was initially submitted that no duty of care was owed to the plaintiff, this was not maintained in argument. Ultimately it was common ground that the State, as occupier, owed a duty to exercise reasonable care to avoid foreseeable injury to the plaintiff (Hackshaw v Shaw (1984) 155 CLR 614 at 662-3), and that this duty extended to the proper maintenance of the assembly hall. The essential point that was pressed by the State was that the judge's specific findings had effectively negated negligence on the part of the State. It will be convenient to return to this point after dealing with the Club's Notice of Contention. The plaintiff adopted a submitting role in the appeal, confident that his verdict against the second respondent was not under attack. THE CLUB'S NOTICE OF CONTENTION The Club sought leave to file a Notice of Contention asserting that the State breached its duty of care by failing to have any system of inspection or maintenance of the floor to detect and repair floorboards that became uneven. It was contended that the accident occurred because a floorboard which had been weakened by fungus stood proud of an abutting floorboard by 1-2mm and because part of the plaintiff's clothing came in contact with the proud edge, causing the splinter. Although the point of contention was raised only days before the appeal was argued, counsel for the State accepted that he was not prejudiced on this account. Accordingly we heard argument, reserving until judgment the question of whether leave would be given to raise this new point. The "newness" of the point becomes apparent by considering the reasons advanced at trial to explain how the splinter which injured the plaintiff might have become detached. As will become clear, the first reason was not necessarily mutually exclusive of the second or third. The first reason was decay of the wood. The State called a building and materials science expert Mr Beckett. His evidence, which was accepted by the judge, was that blackbutt is subject to decay which commences when the tree is growing: "The development of the decay process is virtually undetectable to the naked eye and the deterioration of the wood fibres progressed slowly until the minor's belt buckle connected with the edge of the board, stripping away and splintering the edge fibres to cause the accident." Despite attributing the, or at least a, cause of the accident to decay, Mr Beckett said that it was not possible to observe such decay by visual inspection. URJ STATE OF NEW SOUTH WALES v DALY and ANOR (Mason P) 3 "To the naked eye the appearance of the timber would have remained unchanged.... [It] would have been impossible to recognise this defect in the wood, particularly under a layer of wood stain and polish. Only when the floorboard is splintered does the lack of cleavage strength become apparent to the wood scientist." It would be necessary to use a device such as an electron microscope to discover the decay, and to detach a sample of wood for inspection by this means. Even detection by this means was held to be a "remote possibility". Having observed the evidence of Mr Beckett under examination and cross-examination, and considered the evidence of the Club's expert, Mr Plaister, the judge preferred the evidence of Mr Beckett. (Mr Plaister had primarily advanced one of the alternative causes to which I shall come.) His Honour held that he was satisfied that it was not reasonably foreseeable for the State to warn the user of the hall of the risk of timber splintering in consequence of incipient decay of this nature. The finding was expressed in the following terms: "T prefer the evidence of Mr Beckett. I am satisfied that it was not reasonably foreseeable for the First Defendant to warn the user of the hall of this risk. I am satisfied that it was not a risk that could reasonably have been foreseen and there was on the evidence of the expert, however, a remote possibility using an electron microscope, to discover the decay. I therefore must come to the view that there must be some blame on the First Defendant, although I find that it was not a matter that it could have foreseen in the circumstances. 1 take the view that the First Defendant, being a user [sic] of the premises, ought in some way to a degree, be responsible for the injury to the Plaintiff." (judgment p14, emphasis added) I shall return to this passage after addressing the alternative causes for the accident that were discussed in the evidence. The second cause of splintering was that advanced by the Club's building expert Mr Plaister. Unlike Mr Beckett, he had not inspected the site prior to the splintered floorboard being repaired. His evidence was that the cause of splintering was a misaligned butt end, taken together with the fungal decay of the timber. In his view this fungal decay was likely to have been caused by inappropriate ventilation to the sub-floor area. This hypothetical scenario was rejected by the trial judge as fallacious because photographic evidence of the splintered floor and the evidence of Mr Beckett, who had examined the site before the floor was repaired, clearly indicated that the splinter was lifted from a floorboard adjacent to its side edge as distinct from its butt end. This visual evidence meant that Mr Plaister's hypothesis was bound to be rejected. The third suggested cause of splintering involves a deduction from the evidence relating to the first cause. This is the hypothesis raised in the Club's Notice of Contention. Driven as it is by the rejection of the second cause, the Club accepts that it was the side edge of the floorboard which lifted, and not the butt end. However it is argued that there was nevertheless negligence because the side edge of one floorboard was 1-2mm proud of its neighbour. It is contended that this should have been detected and remedied and, taken together with the fungal decay, was the cause of the splinter lifting. The problem for the Club is that the evidence does not support this hypothesis. It remains mere conjecture. What the Club relies upon is a concession by Mr Beckett in cross-examination that there was probably a misalignment of 142-2mm between the butt ends of the floorboards depleted in a photograph taken of the general area of the floor from which the splinter came. Mr Beckett described such 4 UNREPORTED JUDGMENTS a variation as "minimal in the normal building sense" and "generally acceptable" (AB 103). Mr Beckett's answer in later cross-examination removes the availability of the concession as a springboard for the Notice of Contention. He pointed out that the splinter did not come from the butt end of a board, and he asserted that the alignment between the longitudinal sides of the particular floorboard was "reasonably good" (AB 107). Earlier, in chief, he gave evidence of a "very reasonable adjoinment between the boards and the particular board in question and its neighbours" (AB 102-3). Although, in cross-examination he agreed that it was "possible" that there could be longitudinal misalignment of "up to one millimetre", he made it plain that he was not conceding that this showed on the photograph being put to him at the time. He also accepted that it was possible to pick up a 1-2mm misalignment by testing with the toe of a shoe and that the misalignment could be removed by sanding. The difficulty for the Club with this evidence, taken at its highest, is that the evidence remains entirely conjectural. No-one saw any particular level of misalignment between the floorboards at the point where the splinter came away. Mr Beckett's evidence of observing a "reasonable" alignment stood. It is also to be remembered that this floor had been in place for over 20 years without incident, notwithstanding that sliding by boys had been a popular activity when the plaintiff had earlier been a pupil at the school (he had moved to another school at the time of the accident), indeed during the time when one of the fathers who was supervising the disco for the Club had been a pupil at the school. Accordingly the third possible cause of the accident must be rejected, with its basis of specific and detectable misalignment. THE STATE'S APPEAL It is now convenient to return to the State's appeal. The submission is that the facts found by the learned judge effectively negated a verdict against the State. In the passage commencing "I prefer the evidence of Mr Beckett" which is set out on p6 above, the judge held specifically that the risk which came home (ie, lifting due to inherent fungal decay) was not reasonably foreseeable. It follows, so it was submitted, that the conclusions that "there must be some blame on the first defendant" and that "the first defendant... ought in some way to a degree, be responsible for the injury to the plaintiff' involve error in the light of the principle that the duty is one of reasonable care, not the duty of an insurer. There was no evidence that the condition of the floor had been brought to the attention of the appellant. In my view these submissions must be accepted, and the appeal upheld. The Club's essential answer was its Notice of Contention, which fails for the reasons given. The Club argued that negligence was demonstrated by the absence of a system of inspection of floorboard levels at schools, but this is irrelevant in the light of the evidence that the particular defect was not reasonably detectable. What may be the situation in the future now that the State is on notice of the possibility of this fungal problem is a matter that does not concern us in this appeal. I therefore propose the following orders: 1. The second respondent has leave to file its Notice of Contention out of time. 2. The appeal is allowed and the verdict against the appellant is set aside, together with the order that the appellant contribute to the first respondent's verdict. URJ STATE OF NEW SOUTH WALES v DALY and ANOR (Sheppard AJA) 5 3. The order below that the second respondent pay to the first respondent the sum of $26,250 is set aside with the intent that the second respondent remain exposed to its obligation to pay the full verdict in favour of the first respondent. 4. Order that the first respondent pay the appellant's costs of the trial, other than the costs of the third party proceedings. 5. Order that the second respondent pay the appellant's costs of the third party proceedings at trial and its costs of the appeal; and the first respondent's costs of the appeal as a submitting party. Powell JA I agree with Mason P. Sheppard AJA In this matter I have had the advantage of reading the judgment to be delivered by the President. I am in agreement with his Honour's reasons and conclusions and with the Orders which he proposes. I do not wish to add anything for myself. 1. The second respondent has leave to file its Notice of Contention out of time. 2. The appeal is allowed and the verdict against the appellant is set aside, together with the order that the appellant contribute to the first respondent's verdict. 3. The order below that the second respondent pay to the first respondent the sum of $26,250 is set aside with the intent that the second respondent remain exposed to its obligation to pay the full verdict in favour of the first respondent. 4. Order that the first respondent pay the appellant's costs of the trial, other than the costs of the third party proceedings. 5. Order that the second respondent pay the appellant's costs of the third party proceedings at trial and its costs of the appeal; and the first respondent's costs of the appeal as a submitting party. Counsel for the appellant: D Cowan Solicitors for the appellant: I V Knight - Crown Solicitor Counsel for the first respondent: R Sorby Solicitors for the first respondent: Vizzone Ruggero & Assoc Counsel for the second respondent: G McVay Solicitors for the second respondent: Colin Biggers & Paisley