New South Wales Court of Appeal CITATION : Baker v Gilbert & 2 Ors [2003] NSWCA 113 revised - 23/05/2003 HEARING DATE(S) : 13/05/03 JUDGMENT DATE : 23 May 2003 JUDGMENT OF : Hodgson JA at 1; Ipp JA at 2; Tobias JA at 48 DECISION : Appeal dismissed with costs. CATCHWORDS : NEGLIGENCE - OCCUPIER'S LIABILITY - The measure of the discharge of the duty of care owed by occupiers to visitors - Whether duty to inspect and maintain - Whether occupier of premises discharged their duty of care. D Australian Safeway Stores Pty Limited v Zaluzna (1986) 162 CLR 479 Hackshaw v Shaw (1984) 155 CLR 614 Johnson v Johnson (unreported, NSWCA, 10 September 1991) CASES CITED : Ordukaya v Hicks [2000] NSWCA 180 Short v Barrett (unreported, NSWCA, 5 October 1990) Stannus v Graham (1994) Aust Torts Reports 81-293 Stanton v Marino [2000] NSWCA 134 Andrew Baker (Appellant) PARTIES : Karen Gilbert (First Respondent) Kralc Wholesale Pty Limited (Second Respondent) Nylex Industrial Products Pty Ltd (Third Respondent) FILE NUMBER(S) : CA 40765/02 S Donaldson SC/P Braham (Appellant) COUNSEL : R Royle (First Respondent) Submitting Appearance (Second Respondent) Submitting Appearance (Third Respondent) Minter Ellison (Appellant) SOLICITORS : Ferrier & Associates (First Respondent) Wotton & Kearney (Second Respondent) Curwood & Partners (Third Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 9431/00 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40765/02 DC 9431/00 HODGSON JA IPP JA TOBIAS JA Friday 23 May 2003 ANDREW BAKER v KAREN GILBERT & 2 ORS FACTS The first respondent was seriously injured when she landed awkwardly after jumping (in order to avoid falling) off an unstable footplate attached to a swimming pool ladder at the premises of the appellant. Garling DCJ held that the appellant was negligent in failing to inspect and maintain the ladder adequately, and accordingly awarded damages to the first respondent. The appellant appeals on the ground that Garling DCJ wrongly held that he was in breach of the duty of care he owed the first respondent. HELD (i) His Honour's factual finding that the footplate was unstable and that this instability was caused by insufficiently tightened bolts was supported by the evidence and was not susceptible to challenge. (ii) The basic test for liability is what a reasonable person, in the particular circumstances, would do in responding to a foreseeable risk: Hackshaw v Shaw (1984) 155 CLR 614 at 662 to 663; Australian Safeway Stores Pty Limited v Zaluzna (1986) 162 CLR 479 at 488. (iii) There is no rule of law to the effect that householders, who do not know of the existence of a defect in their property that might cause danger to lawful visitors, but who are aware of circumstances which would alert a reasonable person to the danger from the defect may, without negligence on their part, ignore the existence of the defect. (iv) The response of a reasonable person in the appellant's position would have been to inspect the ladder and the footplate with due care. In the circumstances, the appellant should have known that the footplate was unstable and dangerous and therefore, should have refastened the bolts to ensure that the footplate was flush with the coaming. ORDERS Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40765/02 DC 9431/00 HODGSON JA IPP JA TOBIAS JA Friday 23 May 2003 ANDREW BAKER v KAREN GILBERT & 2 ORS Judgment 1 HODGSON JA: I agree with Ipp JA. 2 IPP JA: On 23 November 1997 the first respondent, Ms Gilbert, was seriously injured when she landed awkwardly after jumping off a plastic ladder. The ladder provided access to and egress from an above ground swimming pool at the premises of the appellant, Mr Baker. Ms Gilbert sued Mr Baker in the District Court for damages arising out of the injuries she sustained. 3 The ladder, which was more than one metre high, was in the shape of an inverted V with a small footplate or platform forming the apex of the V. The footplate was about 45 cm wide by about 25 cm across. Each arm of the ladder was joined to the footplate. The ladder straddled the wall of the pool. One arm of the ladder led into the pool and the other to the area outside it. The footplate rested on the top of the coaming of the wall enclosing the pool. The footplate was fastened to the coaming by two steel bolts that passed though it and the coaming. Each bolt was fixed in place by a nut, which was attached underneath the coaming to the bolt. A washer or spacer was inserted on each bolt above the nut and below the coaming. 4 Ms Gilbert had been swimming in the pool with Mr Baker's permission. After she had swum for some time she decided to leave the pool. To do this, she first climbed up the ladder, which led from the pool to the footplate on the top of the coaming. She did so with her face to the pool wall. When she reached the footplate, she decided, understandably, to turn around so that she could descend by again facing the pool wall. Ms Gilbert is a large woman, weighing at the time about 122 kgs. This meant that it was not easy for her to turn on the footplate, which was a relatively small area. She took a number of small steps while she tried to manoeuvre herself around. She said that the plate became "wobbly". She started to fall outwards towards the ground and then jumped. She landed on her feet but, as I have said, suffered serious injuries. 5 Ms Gilbert alleged on various grounds that Mr Baker was negligent. Principally, she asserted that he had failed to inspect and maintain the ladder adequately. 6 Garling DCJ upheld Ms Gilbert's claim and awarded her damages. Mr Baker appeals on the ground that Garling DCJ wrongly held that he was in breach of the duty of care he owed Ms Gilbert. There were several grounds of appeal but they fall into two categories, namely: (a) Garling DCJ erred in finding that the footplate was unstable to a significant degree, and that the instability was caused by inadequately tightened bolts; (b) Garling DCJ erred in finding that, in discharge of his duty of care as occupier of the premises, Mr Baker should have inspected or maintained the ladder and the footplate. 7 I shall deal, firstly, with the contention that Garling DCJ erred in finding that the footplate was unstable to a significant degree. 8 His Honour accepted the evidence of Ms Gilbert that the footplate was "very wobbly"; so wobbly that it caused her to "fall outwards towards the ground". 9 The learned judge also accepted the evidence of Mr Ferrier, Ms Gilbert's solicitor, who inspected the ladder and the footplate in April 1998. The parties agreed that, save in a respect not presently relevant, the pool was in the same condition when Mr Ferrier inspected it, as it was on the day of the accident. In his oral evidence Mr Ferrier said that the footplate was unstable and rocked when he stood on it. This evidence was consistent with a file note Mr Ferrier made at the time of his inspection and which Mr Baker put into evidence. According to the file note: "[The footplate] sits without apparent other attachment to the top lip of the pool. It is capable of being rocked up and down in its position so that if a person were standing on the top footplate, and they pressed their toe down and raised their heel and alternatively pressed their heel down and raised their toe there would be a substantial rocking motion. I personally stood on the footplate and noticed that this was very much the case. There is a real sense of instability for which I was completely prepared". The file note also recorded that there was "some lateral rocking but this is not as significant". 10 Mr Donaldson SC, senior counsel for Mr Baker, submitted that, as Ms Gilbert did not experience instability on the footplate when she went into the pool, there was reason to doubt her testimony that the footplate was unstable when she came out. But this loses sight of the fact that the instability increased, depending on where the person on the footplate stood; the greater the distance from the centre of the footplate, the more unstable it became. It may be that Ms Gilbert's position on the footplate in the course of entering the pool differed from that when she left the pool. This aspect was not explored with her in cross-examination. She was not asked if she could explain why there was no instability when she entered the pool. In the circumstances I do not think that any significant weight can be attached to this argument. 11 The testimony of Ms Gilbert and Mr Ferrier has to be weighed against that of Mr Baker. He had stood on the footplate, both before the accident and thereafter, but infrequently. He generally stepped over the footplate when entering or leaving the pool. When questioned about whether he had observed the footplate to be unstable, he replied: "I can't say that I've noticed it to probably the extent that – that it would tip me off, anyway. I have never felt unstable on it, no." Later he said that there was a slight movement in the coaming rather than in the footplate itself. 12 Mr Baker's testimony in regard to the stability of the footplate, and his knowledge of it, was somewhat hesitant. This appears to have been caused by the infrequency with which he stood on the footplate. It may be that Garling DCJ considered that the standard by which Mr Baker assessed the stability of the footplate differed from that of Ms Gilbert and Mr Ferrier; or it may be that his Honour simply preferred their evidence to that of Mr Baker. Whatever the position may be in this respect, his Honour's factual finding in regard to the instability of the footplate is unexceptionable. In my opinion, it is not susceptible to challenge. 13 I now turn to the contention that Garling DCJ erred in finding that the instability was caused by inadequately tightened bolts. 14 His Honour found: "[T]he footplate is attached to the coaming by bolts and nuts, and …. those nuts were not tightened up to the top of the underside of the coaming and …. this allowed for the footplate to wobble and the ladder structure to be unstable". And: "[T]here was, in position, …. a bolt with a nut, …. which was rusted in a position well away from the top of the coaming which appeared to be tight, but which was not holding the footplate tight against the coaming". 15 His Honour concluded that the instability of the footplate was caused by the fact that "the nut was not tightened up to the coaming". This resulted in the footplate moving to such a degree that it was unsafe for Ms Gilbert and resulted in her injury. 16 Mr Donaldson submitted that the evidence, properly understood, did not support the finding that the nuts were not tightened up to the coaming. 17 Mr Ferrier said that the footplate was attached to the coaming by "two light bolts" which, he said, "seemed loose". In cross-examination he said that he wished to correct his testimony that the bolts were "loose". He explained: "The bolts were in position because I felt them with my fingers but there was more length of bolt than there was things for the bolts to hold in position. So the bolts were longer than they should have been". He went on to say: "There was nothing wrong with the bolt as I saw it. The bolt was okay, it was just not tightened up and the lack of tightening allowed the footplate to rock which I took photographs of". 18 Cross-examining counsel put to Mr Ferrier that his testimony that the bolt was loose was a conclusion that he had drawn from the fact that the footplate was unstable. He replied: "Well, blind Freddy could see that". 19 A photograph taken by Mr Ferrier showed a gap, plainly discernible, between the footplate and the coaming. An expert witness stated that there was "between five and seven degrees of void between the footplate and the pool coaming". Generally, the expert evidence was that such a gap would allow the footplate to rotate under load. For example, Prof Tompkin testified: "I think if the bolts were loose then there would be quite considerable flexing. There would be actually very worrying flexing. I doubt whether you could stand comfortably on that plate unless your feet were dead, dead centre". He said that if one "put one foot on the edge of that plate …. you would feel extremely unsafe". 20 There would always be a degree of instability in the footplate as the coaming, on which the footplate rested, was flexible. However, the evidence was to the effect that insufficiently tightened bolts would give rise to dangerously greater instability. 21 After the accident, Mr Baker reassembled the ladder and reinstalled the footplate. It was found then to be relatively stable. There was evidence that the ladders had been in use for many years, in many pools, without complaint. The inference is that when properly assembled and maintained, the footplate would indeed be relatively stable. But it is plain from the evidence of Ms Gilbert and Mr Ferrier, as accepted by his Honour, that at the time of the accident the footplate was dangerously unstable. 22 There was no evidence of any design fault that would have caused instability to the extent described by Ms Gilbert and Mr Ferrier. What then is the explanation for the increased degree of instability at the time of the accident? Garling DCJ concluded that the explanation was the insufficiently tightened bolts. In my opinion, the evidence of Mr Ferrier gave direct support to this conclusion, which was consistent with the evidence of Ms Gilbert and the expert testimony to which I have referred. 23 Mr Donaldson submitted that Garling DCJ took no account of the evidence of the presence of the washer between the nut and the coaming. It was argued that Mr Ferrier's testimony that "there was more length of bolt" than was necessary should be discounted because he had felt the washer and not the bolt. But Mr Ferrier testified expressly that he had felt the bolt with his fingers, and it was not put to him in cross-examination that he had felt the washer, and not the bolt. In my view, this submission must be rejected. 24 In the circumstances, I would not uphold the first ground of appeal. 25 I now turn to what I have categorised as the second ground of appeal, namely, that Garling DCJ erred in finding that, in discharge of his duty of care as occupier of the premises, Mr Baker should have inspected or maintained the ladder and the footplate. 26 Mr Donaldson's main submission in this regard was that his Honour failed to apply what was said by this Court in Short v Barrett (unreported, NSWCA, 5 October 1990) and Stannus v Graham (1994) Aust Torts Reports 81-293. 27 In Short v Barrett, the plaintiff, a visitor to the house of a friend, fell off a timber deck balcony (and was injured) when a plank on the side of the balcony gave way. Meagher JA (with whom Clarke JA and Handley JA agreed) held that there was nothing to suggest to the defendant occupier of the premises that there was any defect in the balcony and said: "In my view, a householder in the position of [the defendant] is not acting unreasonably in take 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. Here there was no warning." 28 In Stannus v Graham, the plaintiff rented the defendant's premises as a holiday flat. She fell on a loose step on the premises and sued the defendant for damages for personal injury sustained as a result of the fall. In finding that the defendant was not to blame for the plaintiff's accident, Handley JA (with whom Meagher JA agreed) said at 61, 564: "This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects". 29 The paramount principles governing the liability of Mr Baker are those stated in the judgment of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662 to 663 and approved by the majority of the High Court in Australian Safeway Stores Pty Limited v Zaluzna (1986) 162 CLR 479 at 488. Deane J said at 663: "All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A pre-requisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk". While the significance of "proximity" has been questioned, the law is clear that the duty of care of an occupier arises in accordance with the ordinary principles of negligence and breach of that duty depends on what a reasonable person, in the circumstances, would do by way of response to the foreseeable risk 30 The observations in Short v Barrett and Stannus v Graham, to which I have referred, are merely guidelines to be applied in determining what a reasonable person, in the particular circumstances, would do in responding to the foreseeable risk (that being the basic test for liability in accordance with Hackshaw v Shaw and Australian Safeway Stores Pty Limited v Zaluzna). 31 In Short v Barrett, before finding that there was no negligence on the part of the occupier, Meagher JA was at pains to demonstrate that the balcony from which the plaintiff fell showed no obvious signs of weathering or cracking and there was nothing to indicate that the balcony could be unsafe. It is in this sense that the defendant in Short v Barrett received no warning that the balcony might be unsafe. A warning does not have to be express. It might be implied from the circumstances, for example, from patent signs of danger. 32 Thus, in Johnson v Johnson (unreported, NSWCA, 10 September 1991), another case where a visitor to a house fell from a balcony, the result differed from that in Short v Barrett. The reason for the difference was that in Johnson v Johnson there were indications of deterioration in the relevant part of the premises that should have alerted the defendant to dangers of the kind that eventuated. The Court held that the defendant ought to have been aware of the dangerous condition of the premises, and should have taken the necessary steps to remedy the situation. 33 In Stannus v Graham, Priestley JA said at 61, 562: "Mrs Graham and her husband said the step on which she fell was loose on the day she fell. There was no evidence that it had been loose before then. There was evidence from which it appeared it had not been loose before then. There was certainly no evidence that either Mrs Stannus or her caretaker knew or should have known the step was loose before the accident. Ordinary experience does not suggest the steps were of a kind needing special testing or inspection from time to time, or needed a handrail, nor was there any evidence to that effect". Handley JA at 61, 564 noted that there was no evidence that the step had moved before the accident or that the defendant knew of or had reason to suspect such movement. 34 Thus, while the Court in Stannus held that the defendant was not obliged to discover unsuspected defects that might be a source of danger to lawful entrants, it was careful to explain that on the facts there was nothing that could have led to a suspicion of danger arising. Nothing was said to suggest that, where circumstances give rise to a reasonable suspicion of danger to visitors from the condition of premises, the owner or occupier might, without being negligent, ignore that danger. It is apparent from the reasons of Handley JA that his observation as to the unwillingness of the Court to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects did not extend to circumstances where occupiers should reasonably suspect the existence of defects that might be dangerous to lawful visitors. 35 King v Stewart (1994) 85 LGERA 384 was yet another case where a guest fell from the balcony of a suburban home. Here, the plaintiff failed (although Kirby P noted that, "in some circumstances, a householder might be expected to check further for the safety of the premises"). Sheller JA (with whom Priestley JA agreed) pointed out that the defendant had kept the balcony rails under observation and had done work "as necessary" and "there was no indication of any instability or any insecurity". His Honour said, "[t]he bolts and brackets appeared to be holding firm. There was no indication of any looseness." There was no suggestion that work carried out on the balcony was in any way sub-standard, and there had been "absolutely no indication" to the defendant that the balcony needed attention. Accordingly, it was held that the plaintiff had failed to establish that the defendants were in breach of their duty to take reasonable care to avoid a foreseeable risk of injury. 36 Ordukaya v Hicks [2000] NSWCA 180 was another case involving an unstable step. In dismissing the appeal against the decision of the trial judge rejecting the plaintiff's claim, Sheller JA (with whom Mason P – on this issue – and Meagher JA agreed) said at para 44 that in the particular circumstances the defendant could not reasonably have foreseen a real risk of injury to the plaintiff. 37 In Stanton v Marino [2000] NSWCA 134, a visitor to the defendant's property fell while walking on an unstable rock. Giles JA (with whom Powell JA and Fitzgerald JA agreed) referred to Stannus v Graham and said: "The so-called principles in Stannus v Graham should not be construed and applied like the words of a statute. Although the defendants did not know of the defect in the means of access to the pump in the form of the loose rock, they could still have been in breach of their duty to take reasonable care to avoid a foreseeable risk of injury. If there was reason to regard the means of access …. as involving risk to someone in the position of the plaintiff, including risk from the use of the stone wall as a step even if there was no particular reason to suspect that the rock was loose, there could be breach of the duty of care in failing to remove the risk or at least warn of it". His Honour went on: "The combined effect of the long grass, the large drop requiring stepping on the rock at the top of the wall and using for a step a rock wall not constructed as a step, and the absence of an aid to safety other than the slightly distant pool fence, meant that the means of access to the pump was not a reasonable way of meeting the foreseeable risk of injury". The Court held that the trial judge had rightly found the occupiers of the property to be negligent. 38 A review of the abovementioned authorities indicates that there is no rule of law to the effect that householders, who do not know of the existence of a defect in their property that might cause danger to lawful visitors – but who are aware of circumstances which would alert a reasonable person to the danger from the defect may, without negligence on their part, ignore the existence of the defect. The measure of the discharge of the duty of care owed by occupiers to visitors remains what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. The circumstances may well require, by way of reasonable response, an inspection of the property (or part of it), and a removal or repair of the defect. 39 In the present case Garling DCJ held that: "[Mr Baker] knew or should have known that if a person was on the footplate and it started to move or become unsteady, or wobbly, that it was quite likely that the person would fall off or lose their balance and jump as a result of the instability, and …. [Mr Baker] should have fully maintained, checked and fixed, had it been necessary, the bolts, nuts and the ladder." 40 Mr Baker denied that he knew of the instability of the footplate and no express credibility finding was made against him. I accept Mr Donaldson's submission that the matter should be approached on the basis that his Honour, in effect, decided that Mr Baker should have known that the footplate was unstable and dangerous. 41 The following matters set the context in which the reasonable response of a person in Mr Baker's position has to be measured: (a) Mr Baker knew that a number of persons frequented his premises for the purposes of swimming in the pool. (b) The pool was an above ground pool and, like the ladder and the footplate, was a temporary structure. It was exposed to the weather and to regular use. (c) It was readily foreseeable that an unstable footplate on the ladder, about one metre from the ground, might be dangerous for persons entering or leaving the pool. (d) Mr Baker knew that the footplate was unstable to a slight degree by reason of the flexibility of the coaming, alone. It was obvious that any further instability might be dangerous. (e) The potential danger from the footplate being unstable was increased by its relatively small size. There was little room for a person standing on it to move about on it. (f) Mr Baker knew that Ms Gilbert had been invited to swim in the pool. He also knew that she was a particularly heavy person. She weighed about 122 kilograms at the time of the accident. Mr Baker must have known that, in the ordinary course, Ms Gilbert was likely to experience some difficulty in negotiating and maintaining herself on the small footplate. Any significant degree of instability in the footplate was likely to make entering and leaving the pool very difficult for her. (g) The nuts that were attached to the bolts fixing the footplate to the coaming were rusted to a degree such that it was particularly difficult for Mr Baker to remove them when he disassembled the ladder shortly after the accident. On the finding of Garling DCJ, it was the position of the nuts (rusted as they were) that caused the footplate to be dangerously unstable. The fact that the nuts were so rusty indicates that the footplate must have been dangerously unstable for a relatively lengthy period prior to the accident. 42 Next, it is a significant fact that Mr Baker, himself, appreciated the need to inspect the pool and the ladder at least before each swimming season. He was asked what he had done in 1997 to prepare the pool for use in the summer. He said that in the second or third week in October: "[W]e basically have a day cleaning the pool out and draining what water is left in the pool, cleaning it, inspecting all parts of it that I feel that need inspecting, being, you know, the ladder, the skimmer box and pump which I have replaced. We have also replaced the liner in the pool …". 43 While, Mr Baker noticed nothing untoward about the footplate, there was a sign, warning of potential danger, which appears to have been readily observable on inspection. This was the clear gap between the footplate and the coaming (shown in the photograph taken by Mr Ferrier). I have referred to the evidence that the gap was between five and seven degrees of void. Mr Ferrier's testimony, in effect, was that "blind Freddy" could see that the bolt was loose and (as Mr Donaldson rightly accepted) there would be movement in the footplate. Garling DCJ was entitled to rely on this evidence. 44 Thus, his Honour was entitled to find that the gap between the footplate and the coaming was a patent sign that the footplate might be in a dangerous condition. There was evidence that the gap was, at least, a plainly discernible indication that the footplate was not tightened flush with the coaming. Mr Baker, himself, accepted that if the bolts were not adequately tightened the footplate "would obviously wobble". 45 Mr Baker recognised that the ladder needed inspection and, a month or so before the accident, he did, in fact, inspect the ladder. Were the footplate (an object that was an integral part of the ladder) to be more than unstable to a slight degree, it would constitute an obvious source of danger. In the particular circumstances that I have described, I consider that Garling DCJ was entitled to find that Mr Baker should have inspected the ladder (and the footplate, in particular) with due care. On the evidence, had he done so, he would have noticed the gap and the serious instability. 46 Accordingly, I am not persuaded that Garling DCJ erred in finding that Mr Baker ought to have known that the footplate was unstable and, therefore, should have refastened the bolts to ensure that the footplate was flush with the coaming. 47 In the circumstances, I would dismiss the second ground of appeal and propose that the appeal be dismissed with costs. 48 TOBIAS JA: I agree with Ipp JA. ********** Last Modified: 05/26/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.