New South Wales Court of Appeal CITATION: Ashfield Realty Pty Ltd t/as Ray White Ashfield v Gomes [2005] NSWCA 216 HEARING DATE(S): 24/06/05 JUDGMENT DATE: 24 June 2005 JUDGMENT OF: Mason P at 31 & 36; Ipp JA at 1; Basten JA at 32 DECISION: (1) Appeal upheld with costs (2) Judgment and verdict granted by Quirk DCJ set aside and in lieu thereof substitute an order for judgment and verdict in favour of the appellant (3) Respondent to pay the appellant's costs of the trial (the order for the costs of the trial is not intended to displace the costs order made by her Honour on 28 April 2004 referrable to the motion that was disposed of that day) (4) Respondent to have a certificate under the Suitors' Fund Act 1951 if qualified. CATCHWORDS: NEGLIGENCE - Occupier's liability - No breach of duty of care. ND CASES CITED: Thompson v Woolworths Queensland Pty Limited [2005] HCA 19 Ashfield Realty Pty Ltd t/as Ray White Ashfield (Appellant) PARTIES: Esmerelda Gomes (Respondent) FILE NUMBER(S): CA 40591/04 P Garling SC/K Morgan (Appellant) COUNSEL: L King SC/H Halligan (Respondent) Riley, Gray-Spencer (Appellant) SOLICITORS: Bielby Poulden Costello (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3365/02 LOWER COURT JUDICIAL OFFICER: Quirk DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40591/04 DC 3365/02 MASON P IPP JA BASTEN JA Friday 24 June 2005 ASHFIELD REALTY PTY LTD T/as RAY WHITE ASHFIELD v ESMERELDA GOMES Judgment 1 IPP JA: This is an appeal against a verdict and judgment granted by Quirk DCJ in an action brought by the respondent against the appellant for damages for personal injuries. Her Honour found that the appellant had negligently caused the respondent to suffer damages and granted a verdict and judgment in the respondent's favour in the sum of $242,743.06. 2 The respondent was injured when she fell off a chair in the reception area of the appellant's offices where it carried on business as a real estate agent. The respondent had visited the appellant to make enquiries about three-bedroom residential units. The person who would have attended to the respondent was busy and the appellant's receptionist, Ms Nelmida, asked the respondent to wait and, in the meantime, to take a seat. When the respondent put her weight on the chair in which she intended to sit, it tipped forward and she slipped off and fell on the ground. This fall caused her to suffer injuries. 3 Quirk DCJ found that the chair "posed a risk of injury to customers". This was because of a feature of its design that rendered it unstable when a person sitting on it leant forwards or sat towards the front of the seat. This design defect resulted from a radius on the leading edge of the base of the chair and can best be understood from a description of the chair given by Mr Green, an expert called by the respondent. Mr Green described the chair as follows: "The chair is of rigid steel construction, the frame constructed of two chrome-plated flat steel members which are formed in a manner as to provide a flat base, a vertical member and a horizontally aligned surface which serves as an armrest and supports the backrest. The two flat steel members are joined by a flat steel spacer, which is welded to each base member. The seat and back supports are fully upholstered over a polyurethane cushion supported by a plywood seat, pan and back support." The radius was located about 125 mm to the rear of the leading edge of the seat cushion. The point of contact of the base members on which the chair, as it were, stood was thus 125 mm behind the leading edge of the seat cushion. In other words, 125 mm of the seat protruded over the base of the chair. On the judge's finding, based on the evidence of Mr Green, this protruding effect led to potential instability when a person sat on the front of the seat or leant forward. 4 The judge found that the appellant knew or ought to have known that the chair was unstable and could cause injuries to those who sat on it. She found that there were reasonable steps that the appellant could have taken to prevent injury to those who sat on the chair. She said that the chair could have been removed from the tiled reception area and placed on the carpeted area, appropriate rubber stoppers could have been placed on the base of the steel frames, or the chairs could simply have been replaced (they were not expensive). 5 The appellant contended that the judge erred in several respects. For the purposes of these reasons it is sufficient to deal only with the contention that her Honour should not have found that the appellant knew or ought to have known of the danger posed by the chair. 6 At the time of the respondent's accident, there were two mauve chairs and three black chairs in the appellant's reception area. The chair on which the respondent fell was one of the mauve chairs. 7 Part of Ms Nelmida's duties, at the end of each day, was to return the chairs in the reception area to their usual position from which persons in the reception area may have moved them. There was a timber strip or baton against the wall in the reception area and it was Ms Nelmida's practice at the end of each day to place the three black chairs against the wall under the timber strip so that the lower edge of the timber would act as a break against the black chairs tipping over. 8 When cross-examined, Ms Nelmida agreed that the timber strip was there to stop the chairs from tipping forward and that if she did not put the chairs back against the strip it was "likely someone might sit in that chair and roll forward". 9 The judge referred to the black chairs when explaining why she found that the appellant knew or ought to have known that the mauve chair posed a risk to the appellant's customers. She said in paragraph 70 of her reasons: "Ms Nelmida gave evidence that the similar but not identical legs of the black chairs were deliberately placed under the wooden baton to stop 'the chairs from slipping forward'. She also conceded that if the black chairs were not placed 'properly it's likely someone might sit on that chair and roll forward'. She also conceded that the mauve chairs have a tendency to slip forward although she qualified her answer in the manner to which I have referred. In these circumstances I accept that the defendant knew or ought to have known that the subject chair posed a risk of injury to customers such as the plaintiff, or in other words that it was reasonably foreseeable that the chair could slip forward or topple when used in an ordinary manner and thus cause injury." 10 Her Honour's reference to in "these circumstances" in paragraph 70 supports an inference that she found the requisite knowledge or constructed knowledge on the part of the appellant on the two grounds mentioned in that paragraph. 11 The first ground concerned the three black chairs. The judge relied on the fact that the legs of the black chairs were "similar but not identical" to the base of the mauve chairs. She apparently concluded that because Ms Nelmida knew that the black chairs could slip unless the legs were placed under the wooden strip, she also knew that the mauve chair on which the respondent sat and fell was susceptible to slipping. 12 The difficulty, however, in drawing any comparison between the black chairs and the mauve chairs is that there was no evidence as to the precise configuration of the black chairs. The black chairs were not the same type or model of chair as the mauve chairs. As cross-examining counsel mentioned the metal used for the construction of the two types of chairs was not the same. Secondly, the back of the black chairs was of a different design to that of the mauve chairs. Thirdly, there was no evidence of the extent, if any, by which the leading edge of the seats protruded over the base members. This was an important element as it seems that the radius, coupled with the protruding edge, was the aspect of the design of the mauve chair that caused the potential instability. 13 Without evidence that the radii of the two kinds of chairs and the degree to which the seat protruded over the base were potentially similar in both types of chair, it is not possible to determine that whatever made the black chairs slip was a feature of the mauve chairs. 14 Ms Nelmida's acceptance that the black chairs were "very similar" to the mauve chairs is not evidence of these matters. It is not evidence that the radii were very similar and it is not evidence of the degree to which the leading edge of the seats of both types of chairs protruded over their bases. 15 Ms Nelmida was not an expert and her attention was not directed to the specific features of the black chairs that are relevant when comparing the two types of chairs for the purposes of the issues that arise in this case. 16 Ms Nelmida's agreement to the similarity of the chairs was in the context of cross-examining counsel referring her to particular aspects of them. This can be seen from the following exchange: "Q. Now those mauve chairs are very similar to the black ones, aren't they? A. Yes. Q. Because they've got the same steel frame, not the same metal, because one is tubular and one is flat, but it's the same type of chair where the arm drops away into a curve, like an S-bend, and the legs come out behind the seat underneath as two prongs, correct? A. Yes." 17 In the circumstances, it was not possible to draw any reliable inference from the fact that there were some features that the two kinds of chairs had in common and that, in general, Ms Nelmida agreed that they were very similar. 18 In my opinion, therefore, her Honour erred in finding that the tendency of the black chairs to slip supported the conclusion that the appellant knew or ought to have known that the mauve chair on which the respondent fell was unstable. 19 The second ground stated in paragraph 70 on which Quirk DCJ relied in finding that the appellant knew or ought to have known that the mauve chair was unstable was certain evidence given by Ms Nelmida. This evidence appeared in the following exchange in the course of Ms Nelmida's evidence: "Q. Have you yourself sat on the mauve chairs? A. Yes. Q. They have a tendency to slip forward, don't they? A. For some people they do but not for me; I don't think so. Q. You've seen other people slip forward on the mauve chairs, haven't you? A. No. No. Q. Well why did you say for some people? A. Maybe for some people. Q. Well when you said maybe for some people it follows that you've had the experience of people slipping forward, isn't that right? A. No." 20 Later when Ms Nelmida was asked about her reply that for some people the chairs have a tendency to slip forward she said "Yes, I mean like maybe for some people who stood, like kids, on the chair". In my view, Ms Nelmida's evidence does not establish that she knew that the mauve chairs were unstable. Mr King SC, who together with Mr Halligan appeared on the appeal for the respondent, did not argue that her Honour was entitled to rely on this ground and, in my opinion, he was quite correct in the attitude that he took in this regard. 21 In paragraph 68 of her Honour's judgment she said: "In this case, far from the risk of injury being fanciful or far-fetched, it was obviously foreseeable that persons such as the plaintiff would sit on the chairs in the reception area. Was it foreseeable that the chair in question was unstable and likely to tip forward in the circumstances described by Mr Green? I accept Mr Green's evidence as to the propensities of the chair in question." The evidence given by Mr Green was to the following effect: "An important feature of the design was the provision of a radius on the leading edge of the base members. The point at which the radius occurred was located approximately 125 mm back from the leading edge of the seat cushion … The point of contact of the base, 125 mm behind the leading edge may lead to instability that may allow the chair to roll forward when the occupant sat towards the leading edge or when the occupant leaned forward." 22 The possible instability in the mauve chairs was detected by Mr Green when he carried out tests on a chair that was a reproduction of the mauve chairs. He said that he was surprised at the insecurity he felt when he sat on the chair and deliberately threw his weight forward so as to bring his upper body in line with the leading edge of the seat. His torso was then about 25 degrees from the right angle and his buttocks were of the order of 100 mm or four inches from the back of the chair. He agreed that if one sat on a chair with a normal upright posture, the chair would not tip forward. 23 It is difficult to tell from Mr Green's testimony to what extent his deliberate action, when he induced a feeling of instability, departed from the normal motion of a person sitting on or getting up from the chair. This is relevant to the question whether, apart from the evidence given by Ms Nelmida, it could be inferred that the appellant knew or should have known that the chair was unstable. 24 Until the respondent's fall some five years after the appellant had purchased the chairs no complaints had ever been made in relation to them and there is no evidence, apart from Ms Nelmida's reference to children falling when standing on the chairs, of any outward manifestation of the chairs being unstable. 25 It is quite apparent that Ms Nelmida did not regard the mauve chairs as being in any way a potential source of injury to people who sat in them. It did not occur to her that it was necessary to place the mauve chairs against the timber strip or do anything else because of a possibility that they might slip. It did not occur to her to ask her boss to put something on the wall to stop the mauve chairs tipping forward. She did not suggest to any person that there should be some restraining device on the mauve chairs to prevent them from slipping. She did not bring to the attention of anyone else any defect in the mauve chairs. 26 It may have been possible for the respondent to have run the case on the basis that the configuration of the chair was such that it was obviously unstable, but this proposition was put to neither Ms Nelmida nor Mr Graniero, the proprietor of the appellant. 27 As I understand her Honour's reasons, she did not rely on the obviousness of the instability of the chair in coming to the conclusion she did although it is possible that this is what she meant in paragraph 68 to which I have referred. 28 In paragraph 68 her Honour says that she accepts Mr Green's evidence as to the propensity of the chair to be unstable and it seems that she regarded that evidence as an answer to the question whether it was foreseeable to the appellant that the chair was unstable and likely to tip forward. If that is what her Honour intended, she erred in that respect. The mere fact that the chair was unstable does not mean that its instability should have been known to the appellant. It was necessary to establish either that it was obvious to a reasonable observer that the chair was unstable or that incidents occurred which should have alerted the appellant to the chair's instability. There was no evidence to this effect. 29 The judge found that the appellant had breached its duty of care to the respondent "in failing to ensure that the chair was safe to sit upon". That was an incorrect expression of the principles to be applied when determining whether a duty of the kind owed by the appellant, as occupier of the premises, to the respondent has been breached and may have misled her Honour into making the finding that she did. The appellant's duty was to take reasonable care to avoid a foreseeable risk of injury. It was not to ensure that the chair was safe to sit upon. 30 In the circumstances, I would uphold the appeal with costs, set aside the judgment and verdict granted by Quirk DCJ and in lieu thereof substitute an order for judgment and verdict in favour of the appellant and order the respondent pay the appellant's costs of the trial. 31 MASON P: I agree and would add two comments. In my view, the evidence of Mr Green about the vaguely described tests he performed could not be related to the evidence of the respondent (such as it was) as to the mechanics of the fall. Secondly, it is a mystery why the two chairs were not put into evidence. Nothing suggests that they were unavailable. 32 BASTEN JA: I agree with the orders proposed by Ipp JA. In my view, in circumstances where an injury is said to have occurred by such an apparently simple event as falling off a chair it may be of some importance that the Court identifies so far as possible the manner in which the accident occurred. In this case, there was evidence that the chair, when used on a hard tile floor, had a propensity to tip forward in certain circumstances such as when a person put his or her weight too far forward on the front portion where the seat protruded beyond the foremost point of impact of its curved metal legs with the ground. 33 The plaintiff's evidence however, was categorically that she did not sit forward. On one view, the accident could not have happened if that were true. Her Honour appears to have implicitly rejected that evidence but only in addressing the question of contributory negligence and without making an express finding as to the manner in which she fell to the floor. 34 There is also a need to identify the cause of the accident in order to determine if it were reasonably foreseeable and whether it could have been avoided by measures which it was reasonable to expect the defendant to have adopted. In this case, there were no known prior accidents or complaints involving the relevant chairs. If the risk of injury, once properly identified, should have been appreciated by the defendant a question arises as to whether it was limited to a particular use of the chair as seems likely. If so, should that risk also have been appreciated by the plaintiff. As the joint judgment of the members of the High Court in Thompson v Woolworths Queensland Pty Limited [2005] HCA 19 noted at [37] inadvertence by a user may be something a defendant needs to guard against. Nevertheless, that kind of risk where it materialises invites consideration of contributory negligence. Her Honour's rejection of any failure on the part of the plaintiff to take care for her own safety is hard to follow without knowing what the risk was and how the accident occurred. 35 In my view the trial judge went astray in an otherwise careful judgment by failing to make sufficiently precise findings as to these matters from the evidence which her Honour had recounted. I agree with the orders proposed by Ipp JA. 36 MASON P: The Court makes the orders proposed by Ipp JA indicating that the order for the costs of the trial is not intended to displace the costs order made by her Honour on 28 April 2004 referrable to the motion that was disposed of that day. Furthermore, we grant the respondent a certificate under the Suitors Fund Act if qualified. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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