THOMPSON v ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P, HANDLEY JA and SHELLER JA 11 March 1997 [1997] NSWCA 316 Negligence — occupiers liability — appellant injured from running into glass petition at airport — appeal against trial judge finding of no breach of duty of care — whether failure to warn — whether appellant would have rushed into glass petition anyway Mason P. On 19 June 1989 the appellant was injured when she rushed into a glass wall in the Ansett Terminal at Sydney Airport. The glass wall, or partition, was adjacent to the check in area, running roughly parallel to the queues formed by intending travellers as they wait to check in luggage and obtain boarding passes. The appellant came with a friend, Ms Harben, and Ms Harben's young son who was aged 8. The two women were there to put the son on a flight to Wagga Wagga which was scheduled to leave at 7am. The appellant made no bones about the fact that she was in a hurry. The group arrived at the airport at about 6.45am, parked illegally and rushed into the terminal. They chose what appeared to be the shortest queue, but it moved very slowly. Anxiety mounted as the indicator for the flight in question switched from"'now boarding' to 'flight closed.' They got up to the head of the queue. Ms Harben suggested to the appellant: "Go to gate lounge 3 and get them to hold the plane'; or: 'See if they can stop the plane', whereupon the appellant set off. Ms Harben remained to negotiate to try to get her son's luggage accepted at the check in counter. There were about 10 queues operating that morning. It was a busy time. The appellant's group was in approximately the sixth queue counting from the left as one faced the check in barriers. The appellant attempted to move as quickly as she could through the queues (which were up to four in number obviously) which were to her right. She intended to get onto the escalator ramp or stairs which carried people to the individual departure lounges. The last time she had been in the terminal it was possible to do this without impediment. However, Ansett had, in October 1988, installed a security gate with a scanning device. This is a familiar aspect of modern flight arrangements and no complaint is made on that account by the appellant. Because of the gate and scanner it had been necessary to channel passengers in through the front of the gateway. The glass wall which the appellant ran into served that purpose. Weaving through the queues impeded the appellant's line of vision. This obviously contributed to her inability to see the glass wall which she crashed into, causing immediate head and knee injuries. These have led to continuing disabilities of some seriousness according to the appellant's evidence. Much time was spent at the trial debating whether or not the appellant was running, or as she originally contended (Appeal Book p 161) walking very fast. In-chief theappellant said: (Appeal Book p 29) 2 UNREPORTED JUDGMENTS I turned, looked between the crowd, saw the moving footway, went back a bit around because there were queues. In those days it queued right up to the counter instead of back like it does now. So I went around a few people where it wasn't so busy, like a gap between to get through them, past another few queues and there were a few people in 5 aqueue there, and then I remember there were people standing to the right, a couple of men in business suits there, as I went between and boom. quot;Boom, what? A: 'Boom there was a glass wall that I hadn't seen.' To medical practitioners and in unguarded moments during cross-examination 10 the appellant used the expression 'running' to describe her speed. In response to a question asking her how fast she was moving at the time she struck the glass partition, she said (p 29): I was certainly being very purposeful, and it was that kind of very fast brisk walk that 15 is bordering on a — if you lifted your legs up more and lifted your arms you'd be jogging or running. It was that walking pace that's very fast. Later in her evidence, p 49 of the Appeal Book, she said, I remember running you know, heading towards through people. 20 Witnesses called for the defendant, Mr Osborne and Ms Stanton, described the appellant as having been running. It is, of course, obvious that an airport must cater for those who cut things fine as well as for those who arrive early. Nevertheless the occupier's duty remains one based upon negligence as distinct from strict liability. I do not think one needs to refer to exhibit U to make these 25 propositions good. In Phyllis v Daly (1988) 15 NSWLR 65 at 74, Mahoney JA said this: The result of Australian Safeway is that "unusual" or "hidden" are no longer an answer to a plaintiffs claim. But the fact that a danger is not hidden or unusual but 30 obvious remains of significance. As Wyong Shire Council v Shirt establishes, the court must identify the risk and decide what the defendant should have done to avoid injuryfrom it. In deciding that, it is to take into account "the magnitude of the risk", "its degree of probability" and "other relevant factors". Those factors include inter alia, two things: that the risk is ordinary and that it is obvious. There are dangers on any premises. A room may have a desk or a table. There's a 35 danger that if I fall, I will hit my head on it, and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And 40 _ this notwithstanding that people may live without tables and that tables may be easily removed. Isolated remarks by the trial judge describing the appellant's conduct on the day do not amount to a finding that the duty was other than as I have referred to. The trial judge's ultimate conclusion was that he was of the view that the 45 defendant had done all that was reasonably required of it in the circumstances. He held that the defendant was not in breach of its duty of care to the plaintiff. The appellant's case, certainly as opened, was that negligence consisted of failure to put clearly visible strips or markers on the glass partition, making it clear that there was glass blocking free access. It was not suggested that it was 50 wrong to have a clear glass panel. The very fact that the appellant was able to crash into the partition indicates that it was at least accessible. There might have URWMPSON v ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD (Mason PB been planter boxes in the area at the time of the accident, in the sense that they could have been put there, but it was not suggested by the respondent that there were planter boxes that blocked access. The question whether or not the glass was marked at the time thus became a central issue at the trial. Direct evidence that there were no markings was given by theappellant, Ms Harben and Ms Harben's former husband, Mr Cooper. The appellant also relied upon a personal accident injury report prepared on 19 June 1989 by Ms Brown, who was the duty airport manager at the time. In a section of the report entitled, 'Corrective Action Taken/Recommended/Remarks' Ms Brown had written, inter alia, "Contacted maint. to put vision strips on the glass'. Although the glass into which the appellant crashed was not itself shattered, no photos were tendered (or apparently taken) by the appellant which would have corroborated her on this critical issue. Evidence that there were decals, as they were described, or markings on the glass at the time of the accident was given for the defendant by Mr Osborne who was the person involved in checking in the group's bags on the morning of the accident, and by Ms Stanton who was similarly occupied. She gave evidence as follows (Appeal Book p 342): : 'Do you remember anything else about this glass as at June 1989'. 'It had silver decals at eye level, so that's about five foot.' "What were they like? "Small silver triangles I think.' "Can you remember when you first noticed those stickers." 'I never remembered them not being there.' 'From what time?' : 'From when I commenced in the January.' Later she described the silver decals as probably an inch square. Ms Brown also gave what I recollect she described as adamant evidence about decals. She explained her note on the accident report about corrective action as follows: FOPOPOPO I did that because I felt that the present markings there may not have been adequate, and they were like rectangle markings broken and for someone to run into something maybe a straight strip, a line thatwasn't broken, would prevent someone else running into something, that was my reason for it. The trial judge expressly accepted Ms Brown on this point. Over objection, the appellant and Ms Harben gave evidence that a uniformed gentleman, later identified as Mr Russell, who rushed to the appellant's aid very shortly after the accident, had said, That's unmarked glass, someone ran into the other unmarked piece of glass at the front of the airport last week, and broke their nose. Mr Russell was called for the respondent. He denied knowing of any such earlier incident and denied having said the remarks attributed to him. There was in fact evidence of such an incident, it became exhibit U, and it had occurred on 14 June 1989. It was, however, in a different part of the airport and involved a sliding door. Nevertheless the presence of exhibit U which did not come to light in the trial until after the appellant and Ms Harben had given their evidence, assumes some importance in the case advanced by the appellant today. The central challenge to the trial judge's conclusion by counsel for the appellant grapples with the acknowledgment that the trial judge had a superior position to this Court, in having seen the witnesses in what was a case essentially 4 UNREPORTED JUDGMENTS based on credibility as regards the presence or absence of the decals. I am not at all persuaded that any appealable error has been demonstrated, having regard to the principles expounded by the High Court. In this case there was a clear conflict between two sets of witnesses, and issue was, I consider, fairly joined. The appellant put into her written submissions to the trial judge, so the Court was informed this morning, that the trial judge should take into account the facts that Ms Harben was no longer a close friend of the appellant and that Mr Cooper was the separated husband of Ms Harben. There is nothing to show that this submission was not taken into account. But these matters do not demand a verdict in the plaintiffs favour, given the conflict that occurred. The trial judge saw the witnesses, indeed he expressed a view somewhat unfavourable to the plaintiff's credit in one respect (Appeal Book p 669) and favourable on a critical issue to the credit of Ms Brown (see Appeal Book p 673). Although it was suggested that it was improper for the trial judge to have put into the balance the absence of the photograph which the appellant might have obtained, I do not consider that this involved any error on the trial judge's part. A particular complaint was made concerning the evidence of Mr Cooper, who in a passage in his evidence that was corrected when the transcript was observed on a later date, gave evidence that he saw no decals. It does not appear that he was challenged in cross-examination on this point. My understanding of the principles in Browne v Dunn does not mean that the absence of this challenge means that the appellant had an unfair trial, or that the Court was bound to accept Mr Cooper's evidence in the light of the conflict on which issue was clearly joined. On that I simply refer to the decision of the South Australian Full Court, of Justice Olsen, in Crosthwaite v The Corporation of the City of Elizabeth (1989) 51 SASR, 105. Another particular complaint was raised on the appeal concerning the way the trial judge addressed Mr Cooper's evidence centred upon the finding at page 676, C to EF, of the Appeal Book, where his Honour said, I was not greatly assisted by the expert evidence in this case either way, because what is outstanding in the factual circumstances of this case is the very clear and obvious nature of this glass wall to anybody spending any period of time in the area. Mr Cooper, who as well as being a witness of fact has engineering expertise, expressed an opinion that more should have been done to make the glass wall visible. I do not read the passage that I have just quoted as suggesting that his Honour misunderstood the test which he was to apply, nor do I accept the submission somewhat faintly put that the passage quoted indicated that the trial judge had had a private view. Having regard to the principles in Devries Case (1993) 177 CLR 472 I do not consider that the conclusion adopted by the trial judge was not open to him. I do not accept, for the reasons I have given, that the ultimate result on the issue primarily joined was glaringly improbable. There was a particular complaint developed in argument this morning relating to exhibit U. This was the accident report concerning the incident that occurred a week or so prior to the appellant's accident, involving a Mr Grosby. He had crashed into a door at the front of the terminal expecting it to open, but it did not, or it did not open quickly enough, to avoid an accident. Exhibit U shows that such accident did occur and that exhibit only came to light in the trial after the evidence had been given by Ms Harben and by the appellant to the effect that a URWMPSON v ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD (Mason PB uniformed security officer, Mr Russell, had spoken to the appellant immediately after the accident andhad said the words I referred to earlier in the judgment. I do not think that the appellant's counsel made good his submission that the trial miscarried because of the argument surrounding exhibit U. In the first place the trial judge did refer to exhibit U in the context of assessing the case and the credibility issues. Secondly it does not appear to me correct to say that because of what exhibit U revealed the trial judge was bound to reject Mr Russell's sworn evidence denying that he had used the words attributed to him or that he knew of the earlier accident. Furthermore it does not follow from the evidence that exhibit U necessarily corroborated Mr Russell's admission according to the evidence of the appellant, Ms Harben, that there were no decals at the time. Exhibit U did not address the question of decals or otherwise at the place where the appellant had her accident. For these reasons I would reject the appeal insofar as it attempts to attack the central findings of his Honour, relating to what was ultimately a credibility issue. In any event I have not been persuaded that the appellant has made good an attack which would be necessary to be made upon what I would take to be an alternative basis of the verdict below. The trial judge said (Appeal Book at pp 676-7): I do not find any breach of the duty of care by the defendant. And in the event that Thad reached the conclusion that the stickers or markings were absent from the glass, I would not be of the view that that was the cause of the plaintiff colliding with the glass. Elsewhere his Honour had described the appellant's situation immediately before the accident in the following terms, from 672, She'd embarked upon an impossible task in a frame of mind approaching something like blind panic with an absolute and complete disregard of her surroundings. And at 675,""I am of the view that the plaintiff was behaving in a manner completely bereft of any concern for her surroundings.' Making perhaps a slight discount for the graphic nature of his Honour's expression, I consider the conclusion was certainly supportable in the evidence, having regard to the rush, the panic, the impeded vision, and the busy airport situation that confronted the appellant. It is clear that she was in a desperate situation endeavouring to stop the plane which may well have left already. The finding that she would not have noticed stickers or markings had they been there, or had they been larger, is in my view quite supportable. It seems to me that this finding is an independent basis supporting the verdict and it also answers what perhaps emerged as an alternative case advanced on appeal to the effect that it did not matter even if the finding below that there were decals was wrong. Although it does not appear that the case was opened below on this basis, it was put in submission by the appellant, reading from p 22 of the written submissions, that the evidence of Dr Cook that the glass partition was a danger, was not predicated upon the non-affixment of the chevrons. He was also of the view that the chevrons that were ultimately attached to the glass were positioned unsatisfactorily in that this caused the transfers to merge into the background. In Dr Cook's view the partition was a wall that could be mistaken for a corridor or an open space. If one accepts, as I think one must, that Ansett were entitled to have a glass wall in this position, I think that the facts and the findings properly based upon them indicate that the appellant would not have been deterred by decals, assuming they were not there; indeed decals that were larger than those covered by the evidence of the respondent's witnesses. I think that provides an 6 UNREPORTED JUDGMENTS alternative basis upon which the judgment below stands. For those reasons I propose that the appeal be dismissed with costs. Handley JA. I agree. 5 Sheller JA. I also agree. Mason P. That is the order of the Court. Orders accordingly. 10 Counsel for the appellant: G B HALL QC WITH D HOGAN-DORAN Solicitors for the appellant: G H HEALEY and CO Counsel for the respondent: T F HUGHES WITH R PARSONS 15 Solicitors for the respondent: KALYK NASH SOLICITORS