New South Wales Supreme Court CITATION : Gordon v Perignon & Ors [2004] NSWSC 354 HEARING DATE(S) : 6 and 7 April 2004 JUDGMENT DATE : 30 April 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : In each proceeding, there will be judgment for the defendants and the plaintiff is to pay the costs thereof. All Cross-Claims are dismissed. I reserve all questions of costs of the Cross-Claims. Exhibits may be returned. CATCHWORDS : Child falls from open window in bedroom - alleged defective flyscreen - duty of care of owner and body corporate - causation. LEGISLATION CITED : Strata Schemes Management Act 1996. Strata Titles Act 1973. CASES CITED : Lubrano v Proprietors of Strata Plan No 4038 - BC 9302101. 20523 of 2000 Maxine Gordon by her next friend Jessica Gordon (Plaintiff) v Colette Perignon (First Defendant) Owners Corporation (Body Corporate) Strata Plan: 8362 (Second Defendant) Canley Vale Real Estate Pty Limited (Third Defendant) PARTIES : 20741 of 2001 Jessica Gordon (Plaintiff) v Colette Perignon (First Defendant) Owners Corporation (Body Corporate) Strata Plan: 8362 (Second Defendant) Canley Vale Real Estate Pty Limited (Third Defendant) FILE NUMBER(S) : SC 20523 of 2000; 20741 of 2001 Mr B Donovan QC/Mr D Bertini (Plaintiffs) COUNSEL : Mr E Petersen (First Defendants) Mr A Hewitt SC/Mr E Cox (Second Defendants) N/A (Third Defendants) Galluzzo Golotta Andriano Simone (Plaintiffs) SOLICITORS : Peter R Murphy & Co (First Defendants) Curwood & Partners (Second Defendants) N/A (Third Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Friday 30 April 2004 20523 of 2000 Maxine Gordon by her next friend Jessica Gordon v Colette Perignon & Ors 20741 of 2001 Jessica Gordon v Colette Perignon & Ors JUDGMENT 1 MASTER: There are two proceedings before the court. In each of them, the court is asked to determine the question of liability. Claims founded on negligence are pressed against the first and second defendants. 2 Mr and Mrs Gordon resided in a unit or townhouse known as No. 2/102 Wattle Avenue, Carramar. It is alleged that they were tenants. The owner was Miss Perignon. It was one of a number of units in a building now governed by the Strata Schemes Management Act 1996 (the Act). The second defendant is the Owners Corporation. 3 The unit had three floors. On the top floor was inter alia a main bedroom. The main bedroom had a window. It has been described as an aluminium sliding window of conventional design with one fixed and one sliding sash. Alteration had been done to the window to enable the installation of an air conditioner. As a consequence, the window closed as against a mullion installed between the sliding sash and the air conditioner. Outside of the window was a flyscreen secured by clips. 4 The Gordons had occupied the unit for some years prior to 16 November 1997. They had installed a queen size bed in the main bedroom. It was positioned by Mrs Gordon so that it was located adjacent to the window. It had no bed head. The sill of the window to which the flyscreen was fixed had a height of 860 millimetres. The bed that was pushed adjacent to the window had a height of 650 millimetres. 5 On 21 April 1996, a child (Maxine) was born to the Gordons. As at 16 November 1997 she was about 18 months of age. She was walking. She had a height of about 82.5 centimetres and a weight of about 9.95 kilos. 6 At about 9.00am on Sunday 16 November 1997 Maxine had been on the bed in the main bedroom. From that bed, she came to fall out of the window at a time when the sliding sash had been open taking the flyscreen with her and suffering injury. She fell 6.4 metres landing on concrete paving. 7 The evidence is that Mrs Gordon had opened the window; the sliding sash was fully open and that this was done in the middle of the night. 8 In one of the proceedings, Maxine is the plaintiff and she claims damages for personal injury. In the other proceedings, Mrs Gordon is the plaintiff and she claims damages for nervous shock. 9 In both proceedings, the credibility and reliability of witnesses could have been a matter of importance. Accordingly, I have closely observed the witnesses during the giving of evidence. Any assessment of credibility and reliability, is made having regard to both demeanour and evidence. 10 A number of witnesses have been called on behalf of the plaintiff (including Mrs Gordon, Mr Gordon and Mr Taylor). The plaintiffs have tendered photographs and certain documentation (including interrogatories and answers). 11 The first defendant herself gave oral evidence. 12 The second defendant called Mrs Holland. It tendered a report from an expert (Mr Cook) and a bundle of documents. 13 Mrs Gordon has given a version of how the accident took place. She says that Maxine was brought from her cot in the second bedroom and placed on the bed in the main bedroom by her. Both parents were in the bed. She had been feeding from a bottle. Then she was mucking around in the middle of the bed with her mother. Later, she came to be standing up on the bed and positioned close to the flyscreen. Mrs Gordon gave the following evidence in chief:- "……………………………………………………. Q. After we've got her standing up and you had hold of her, what's the next thing that happened? A. I had hold of her leg and she went to walk to the window to look out the window and she had her hands on the cement ledge that was there and she was looking out. Q. What happened after that? A. After that I was in an uncomfortable position - I was lying on my back; I let her go for a second to turn around to grab her and that's when she fell out. Q. Prior to her falling had she been jumping up and down on the bed in any way? A. No. Q. Had she been running around the bed at all? A. No. Q. Tell me, if there had been no flyscreen there, would you have acted differently? A. Yes. Q. How would you have acted differently? A. The window would be closed. Q. Can you describe what her position was when she fell through the flyscreen? A. She was just leaning onto the window, her hand was on the cement ledge and it was on her waist - it was up to her waist, the cement ledge, which made her just lean over and fall. Q. Can you remember what happened with the screen? A. The screen fell straight out with her. Q. After that happened, what did you do? A. I screamed out 'Maxine'. My husband got up. He went straight to her to comfort her and he told me to ring the ambulance, and I did. …………………………………………………………….." 14 It was not unusual for Maxine to be on the bed with the parents on weekend mornings. 15 In cross-examination by counsel for the first defendant, she gave the following evidence:- "……………………………………………. Q. Is it fair to say that you were holding her leg for the purpose of restraining her from falling against or leaning against the flyscreen? A. Yes. ……………………………………………. Q. You released your hold on Maxine's ankle? A. Yes. Q. But at the time that you released your hold on Maxine's ankle, Maxine was a matter of inches from the open window, was she not? A. Just right up against the flyscreen, yes. ……………………………………………." 16 Maxine was taken to hospital. On the following day whilst the parents and Miss Perignon were visiting at the hospital conversation took place concerning what had happened. Mrs Gordon gave this further evidence during her cross-examination:- "……………………………………………. Q. Did you say to Ms Perignon words to the effect as follows, 'I entered the bedroom. Maxine was on the bed jumping and playing. David was lying down half asleep. I said to David 'Don't leave the window open'. I was holding Maxine. When I let go and I went to slide the window to, before I could shut the window it was too late and Maxine went through it.' Did you say words to that effect to Ms Perignon? A. No. …………………………………………… Q. To the best of your recollection - I'm asking you what happened - I'm asking you what you said to Ms Perignon. In other words, I'm asking you for words, not events. What did you say to Ms Perignon? A. I said exactly as I told you; she was on the bed but I had a hold of her leg and she fell out of the window. She didn't jump out of the window. That's not what I said. …………………………………………….. Q. Did you say to Ms Perignon 'I said to David 'Don't leave the window open' '? A. No. Q. I suggest to you that at some stage during Ms Perignon's attendance at the hospital on the Monday following the accident, you said to Ms Perignon 'I told David many times not to let the window open' - did you say that? A. No. ………………………………………………….." 17 During cross-examination, certain concessions emerged. She conceded concern at the risk Maxine might fall out of the window. She conceded that she didn't trust the flyscreen to save her. It was the danger of the open window in the circumstances that led her to hold Maxine whilst she was standing on the bed. 18 She conceded that she could have removed the risk by either closing the window or moving the bed. She also conceded that Maxine may have bumped one of the clips on the flyscreen. 19 Mr Gordon said that he did not witness the accident. His version is that he was in a state of light sleep and first became aware of the accident upon his wife telling him that their daughter had fallen out the window. He denied that he had opened the window. He denied that he said to Miss Perignon that it was his fault. 20 He repositioned the bed away from the window following the accident. He said that it had been placed in the position adjacent to the window for the purpose of obtaining the benefit of the air conditioning. 21 Mr Taylor was qualified as a building expert. He has produced four reports. His reports have been prepared inter alia on the following assumption:- " 4. Summary of the Accident The writer was instructed by Mrs Gordon that, while in bed with her parents, Maxine Gordon sat up at the head of the bed and for a moment pushed against the fly screen fixed in the bedroom window. The clips attaching the screen to the window gave way suddenly and the child fell through the window falling about 6.4 metres onto the concrete paving beneath the window, refer photograph No 5. ……………………………………………." His evidence focuses on what are said to be deficiencies in the flyscreen (these are set forth in his reports and do not need to be repeated in this judgment). He gave supplementary oral evidence and was cross-examined. 22 The flyscreen had been put back in place after the accident. He removed it to make his inspection. He then put it back in place. He noticed that it had a slight bend in it. He had difficulty in putting it back in place. It was possible that this was due to the dislodgment. 23 There were various limitations on his opinions. In many respects, his concern was building standards. He had not tested the flyscreen itself. He saw it after it had been dislodged and there may have been unobservable damage to the clips as a result of the dislodgment. Largely, any relevant problems came down to the clips. He could not eliminate the possibility that the child may have dislodged one of the clips and if that happened the screen might yield and allow her out of the window. In preparing his reports, Mr Taylor made no assumption as to the height of Maxine. 24 Leaving these matters aside, he conceded that a flyscreen is an optional item. Many buildings do not have them. The addition of flyscreens is not a requirement under any standard or code. There are no standards that it is expected to meet in the sense of resisting force. His tests concerned screens that can be purchased from the local hardware store and which represent the current standard of construction. These do not have the capacity and are not constructed to prevent children of around 3 or 4 years of age pushing them out and falling out of the window. A younger child making a jump or a running movement could force her way through. A flyscreen is installed to keep out insects. The purpose of securing it was to deal with insects, wind and cleaning. What was presented as being defective was its susceptibility to be dislodged by pressure. 25 He gave inter alia this evidence:- "………………………………… Q. An occupier of a home unit building or a body corporate of a home unit building should be faced with the responsibility of ensuring that their fly screens were child proof, that is not reasonable, is it? A. I agree. ……………………………………." He also gave inter alia this evidence:- "……………………………………. "Q. A reasonable occupier had noticed the screen had stayed in place and had not fallen out over a long period of time would treat that as sufficient evidence that it was doing its job and would continue to do so? A. They could do, yes." 26 The first defendant is a widow. She acquired the unit in about 1990. She was friends with the parents of Mrs Gordon. The parents were regular visitors to the unit. 27 She lived in the unit herself for some years. Firstly, she lived alone. Later, her sons also lived there. 28 She was approached by the parents of Mrs Gordon to allow Mr and Mrs Gordon to live in the unit. They commenced to live there in about 1995. 29 The bed that had been in the main bedroom was given away to the brother of Mrs Gordon. Mr and Mrs Gordon moved their own furniture into the unit. 30 The air conditioner, sliding window panel and flyscreen had been installed prior to her purchase of the unit. She had not had any trouble with them. She had not done any repairs or maintenance on them. The flyscreen had not been dislodged prior to the accident. 31 She gave a version of a conversation had with Mrs Gordon at the hospital on the Monday following the day of the accident. The conversation took place in French. Her evidence gave a translation of that conversation. In her version of that conversation, a different version of the accident is given. She gave this evidence:- "……………………………………………………. Q. Doing the best you can to put it into English, I am going to ask you to repeat words to the effect of what you said in French. What did you say to Jessica? A. Well, I just asked her what happened. Q. What did she say to you? A. She said - she was crying. She said, 'I enter the room. Maxine was on the bed jumping and playing. David was lying down asleep. I told David not to leave the window open when Maxine was on the bed. I grabbed Maxine by the leg, I hold her. I have to let her go because I wanted to slide the window shut down again, and by the time I let her go, she went through the window.' Q. Where was that said to you? Where were those words spoken? A. At the hospital. Q. At the hospital did you hear David say anything about what happened? *A. Well, when I was speaking to Jessica, David wasn't there, he was inside with his daughter. He come to the door, he was crying and he was saying to himself and to everyone, 'It's my fault. It's my fault.' ……………………………………………………" 32 She says that she wrote down what she had heard at the hospital. She said that she had since lost the pieces of paper. Counsel for the plaintiffs mounted a challenge to these aspects of her evidence. 33 If the court had been asked to express a view as to competing evidence, I would have taken the view that where there was conflict she should be preferred to Mr and Mrs Gordon. As the court has not been so asked, I put those considerations aside. 34 At the conclusion of the evidence, counsel for the parties proposed making written submissions. The proceedings were then adjourned to enable such submissions to be made. Thereafter, written submissions were made by all parties. No party made application to put oral submissions. 35 The particulars of negligence alleged against both defendants concern matters of the installation both of the flyscreen and the air conditioner. Broadly speaking, the substance of the plaintiff's case is that there were deficiencies in the flyscreen (it was said to be unsafe) which saw it being unable to prevent Maxine coming to fall out of the window. However, the position of the air conditioner seems to be that it has relevance only in so far as it was visible and its installation may have affected the susceptibility of the flyscreen to be dislodged. 36 In the case of the second defendant, the plaintiff looks also to the Act and says that its provisions and/or by-laws give rise to statutory duty of care which was breached (by the failure to inspect and make good the unsafe flyscreen). 37 The starting point is the evidence given as to how Maxine came to fall through the window. Mrs Gordon is the only eyewitness. Her evidence fails to disclose with any precision how this came to pass. 38 Maxine was allowed to get "right up against the flyscreen". She was leaning onto the window with her hand on the cement ledge (which was on or up to her waist). Mrs Gordon let her go for a second and Maxine then fell out. Mrs Gordon said that she didn't jump out of the window. There was no evidence from her that Maxine pushed against the flyscreen. Her hand was on the cement ledge. It was up to her waist. It "made her just lean over and fall". 39 The material suggests that in standing on the bed close to the flyscreen Maxine may have been in a position where a substantial part of her body would have been above the ledge. She could have overbalanced. How she came to fall out of the window does not emerge with precision from Mrs Gordon's evidence. The flyscreen came out with her. 40 The version given by Mrs Gordon is in conflict with the disputed first defendant's version of what was said at the hospital. 41 Curiously, the court has not been asked to make any findings as to credibility or reliability. I am not asked to resolve the areas of conflict. I am not asked to not accept the version of the accident given by Mrs Gordon. Accordingly, I shall proceed on the assumption that such version should be accepted. The written submissions have proceeded on that basis. 42 The occupation of the building may have commenced in about 1974. Originally, it was subject to the Strata Titles Act 1973. At the time of its construction, there were no flyscreens. Both the flyscreen and the air conditioner were later additions. They were not installed by either defendant. The air conditioner may have been more than 10 years old and the flyscreen was older. There is no evidence of any application to the Body Corporate in respect of either of the additions. I am not satisfied that there was any requirement to obtain its consent to them. There is no evidence of awareness of them and I am not satisfied that it ought to have been aware of them. I am not satisfied that either formed part of the common property. There was no evidence that there had been a need for repair or maintenance. There was no evidence that this screen had ever been dislodged. There was an unawareness of any need for repair or maintenance. Mr and Mrs Gordon were in the best position to observe any such need. Although they did not do so, they did observe a safety need in respect of another matter (arising from a section of stairs and this was attended to by the first defendant installing a screen door). 43 This is a case where causation is clear. Maxine came to fall out of the window because she was allowed on to a bed positioned by Mrs Gordon adjacent to a window which had been opened by the latter and steps were not taken by the parents to prevent her from having access to that open window. She was allowed to get right up against the flyscreen and was left unrestrained. There was an obvious danger of which both parents were aware. In my view, the parents created the danger and their conduct was the cause of the accident. 44 A flyscreen is not a safety device. It is not constructed to prevent children falling out of open windows. There are other devices available to secure child safety. The particular flyscreen was performing its intended function. The accident could have been avoided by the Gordons by either repositioning the bed or by not opening the window. 45 The question of whether or not a duty of care is owed depends on the evidence. In the circumstances of this case, I am not satisfied that either defendant owed a duty of care as alleged to the plaintiffs (whether it be under common law or Statute). In my view, neither of them knew or ought to have known that the flyscreen constituted a danger. The evidence did not reveal any matter which would have alerted them to the necessity to take action in respect of it. 46 I should expressly add that I am not satisfied that the provisions of the Act or the by-laws confer any statutory duty as alleged owed to the plaintiffs. For completeness, I should also say that I did not find the reference to Lubrano v Proprietors of Strata Plan No 4038 – BC 9302101 to be helpful. 47 The written submissions have seen the ventilation of much argument. I have not endeavoured to deal with all of the matters litigated. In my view, it was unnecessary to do so. I have sought to confine these reasons to those matters only which dispose of the litigation. 48 In each proceeding, there will be judgment for the defendants and the plaintiff is to pay the costs thereof. All Cross-Claims are dismissed. I reserve all questions of costs of the Cross-Claims. Exhibits may be returned. ********** Last Modified: 05/11/2004 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.