New South Wales Court of Appeal CITATION: Odrljin v Beard [2010] NSWCA 93 HEARING DATE(S): 29 April 2010 JUDGMENT OF: McColl JA at 1,23; Macfarlan JA at 21; Sackville AJA at 22 EX TEMPORE JUDGMENT DATE: 29 April 2010 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: Application for leave to appeal – no point of principle LEGISLATION CITED: Civil Liability Act 2003 (Qld) District Court Act 1973 (NSW) CATEGORY: Principal judgment Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81,952 CASES CITED: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Odrljin v Beard, unreported, District Court of New South Wales, 30 July 2009 Mark Odrljin - Appellant PARTIES: Christopher Beard - First Respondent Judith Beard - Second Respondent FILE NUMBER(S): CA 2009/00298496 COUNSEL: D R Toomey - Appellant D Ronzani - Respondents SOLICITORS: Beilby Poulden Costello - Appellant Sparke Helmore - Respondents LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5417/2007 LOWER COURT JUDICIAL OFFICER: Gibson DCJ LOWER COURT DATE OF DECISION: 30 July 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298496 McCOLL JA MACFARLAN JA SACKVILLE AJA THURSDAY 29 APRIL 2010 ODRLJIN v BEARD Judgment (on application for leave to appeal) ex tempore 1 McCOLL JA: This is an application for leave to appeal from a decision of Gibson DCJ: Odrljin v Beard, unreported, District Court of New South Wales, 30 July 2009. In those proceedings the applicant sought to recover damages from the respondents in respect of personal injuries he sustained when his hand struck a ceiling fan installed in their premises on the Gold Coast in Queensland. 2 The primary judge entered judgment for the respondents. In the event that she was wrong in her finding on liability her Honour determined that, had the applicant succeeded, she would have awarded him $73,148, an amount she would have reduced by 80% on account of contributory negligence. The applicant accordingly required leave to appeal, the amount in issue being less than $100,000: s 127(2)(c) District Court Act 1973 (NSW). 3 The applicant was injured on 1 December 2004 when he was holidaying on the Gold Coast as part of "Schoolies" week. He was visiting friends who were renting an apartment owned by the respondents in the same apartment block in which he had been staying during that week. As described by her Honour, the accident occurred when the applicant raised his left hand above his head while he was dancing and struck it on a ceiling fan in the premises. 4 The applicant's case at trial was that the respondents had breached the conceded duty of care they owed him in failing to put a warning sign on the wall of the apartment notifying him of the presence of the ceiling fan, alternatively, in failing to install a less dangerous fan, being one with timber blades and, either alternatively or in addition, in failing to install a guard covering the fan. The accident having occurred in Queensland the respondents' liability was governed by the Civil Liability Act 2003 (Qld) (the "Queensland Act"). 5 The respondents defended the claim on the basis that the risk of injury from the fan was obvious within the meaning of s 13 of the Queensland Act so that, in accordance with s 15, they did not owe the applicant a duty to warn him of the risk the fan posed and that, in the circumstances, it was unnecessary for them to take the alternative precautions for which the applicant contended. 6 The primary judge accepted the respondents' case of "obvious risk", finding (at [73]) that, as depicted in photographs tendered in evidence, the fan was large and the sight of its blades whirring at maximum speed would have been obvious to anyone entering the room. Her Honour added that no sensible person would voluntarily have put his or her hand into the moving blades. She concluded that the risk of injury was obvious for the reasons explained by this court in Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports ¶81,952. 7 Mr Dominic Toomey of counsel, who appeared for the applicant on the application and at trial, submitted the primary judge had erred in failing to apply the proper test for obviousness of risk within the meaning of the Queensland Act. In my view her Honour's judgment (at [73]) indicates that her Honour was satisfied on the facts, in accordance with the test for obviousness of risk enunciated in Jaber, that the s 13 requirement had been satisfied. The applicant has not demonstrated that in finding those facts, and in applying that test, her Honour departed from the proper meaning of s 13 of the Queensland Act. He has not, accordingly, demonstrated that her Honour erred in concluding that the respondents did not owe the applicant a duty to warn him of the risk of the fan in the ceiling of the relevant premises. In my view the applicant has not made good his first challenge to the primary judge's reasons. 8 The two alternative precautions for which the applicant contended at trial were what I will call the "wooden fan case" and the "guard case". 9 There was evidence at the trial given by the respondents' expert, Mr Fritz, whose evidence her Honour preferred to the applicant's expert, Mr Hickey, concerning the nature of ceiling fans and, in particular, the question of injury if a different type of fan blade were used. Mr Fritz's evidence, which her Honour set out (at [32]), was to the effect that all fan blades have thin leading edges to allow efficient operation and to keep the noise level as quiet as possible and that injury to persons would not be diminished in the event that a different type of fan blade, were it to be available, was used. 10 Her Honour concluded (at [56]) that, in effect, there was no scientific evidence for the proposition that wooden blades were safe while steel blades were not or, to put it another way, her Honour concluded that that proposition had not been sufficiently established. She held that it was not enough that such evidence should sound plausible, but, rather, that she would have to be persuaded by some kind of scientific enquiry as opposed to what her Honour referred to as a postscript to an expert report asserting that wooden fan blades do not cause injury. Accordingly, she concluded that postscript fell short of the standards set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and was at best an ipse dixit without any demonstration of its scientific reliability. 11 Mr Toomey took the Court to evidence given by Mr Fritz, to the effect that fans with blades of a timber construction have a rounded edge, a proposition with which Mr Fritz agreed, and to Mr Fritz's next answer in response to a question from Mr Toomey that such an edge was distinct from steel blades which Mr Fritz accepted were quite sharp. 12 Mr Toomey took the Court to that evidence as I understood it to support the proposition that a wooden blade would have been safer and that installing a ceiling fan with such blades was a reasonable precaution for the respondents to have taken in the circumstances. In my view that evidence did not take the applicant's case beyond that which her Honour found (at [56]) had not been established. It did not detract from her Honour's conclusion that the proposition that a wooden blade would have been safer than a metal blade was not established. As her Honour concluded (at [81]), even if there were wooden blades - and I will point out at this stage her Honour was also dealing with the guard case - the applicant would still have suffered an injury by flinging his hand up in the manner he did. The question would only have been one of the severity of the injury. There was no evidence as to what injuries could be inflicted by wooden blades. In my view the applicant has not demonstrated any arguable error on her Honour's part in rejecting the applicant's case based on the installation of a wooden fan. 13 The final alternative precaution for which the applicant contended at the trial was the guard case. Her Honour recorded (at [26]), referring, as I understand, to Mr Hickey's opinion about the use of an impeller guard, that this was a question of aesthetics and a guard system around the ceiling fan, while effective, would probably have looked terrible. 14 Mr Toomey accepted that had a fan guard been installed, the distance between the floor of the premises and the bottom of the fan guard would have been two metres. This accorded with evidence which Mr Fritz gave, as her Honour recorded (at [37]). Mr Fritz concluded that having regard to the distance between the floor and the bottom of a fan guard which would have been created, being only two metres, the installation of such a guard would not only have been an unsightly obstruction, but would have been neither practical nor acceptable. This was because according to Mr Fritz's evidence, it would have been even easier for a person to strike their hand against the obstruction although, as her Honour accepted, obviously without the risk of a fan blade injury. 15 Mr Toomey criticised her Honour's statement (at [39]) that once the distance to the floor was only two metres rather than 2.1 metres that that would contravene an obligation imposed by a regulation. It does appear that in this respect her Honour was in error insofar as it is common ground there was no regulation governing the distance between the floor and the bottom of any such guard. However, for reasons to which I will come shortly, that was not, in my view, a material error. 16 The primary judge clearly accepted the evidence given concerning the unsightliness or the lack of aesthetics which would have been created if a fan guard was installed, referring, as I have said, to Mr Hickey's evidence to that effect (at [26], [47]). Her Honour concluded (at [48]) that courts should be slow to come to a conclusion that items commonly found in many homes such as electric ceiling fans were so dangerous that they should not be used or that they should be fenced in with a cumbersome and unattractive guard. 17 Although I accept that to some extent her Honour's reasons for rejecting the guard case were not as clearly stated as might be desirable, it is my view that ultimately her Honour rejected that case for two reasons. The first was the question of aesthetics to which I have referred. Her Honour also concluded that the applicant had not established within the meaning of s 9 of the Queensland Act that a reasonable person in the position of the respondent should have taken that precaution having regard, again, to the obviousness of the fan and the fact that there was (at [79]), no evidence of any feature or layout of the room or the height of the ceiling which was out of the ordinary and the fan was not obscured or obstructed in any way. 18 Her Honour's conclusion in this respect was, in my view, consistent with Gleeson CJ's statement in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 (at [23]) that there is: "[N]o such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective." 19 Although made in the context of residential premises those observations of the Chief Justice in my view apply also in the circumstances of this case. There was nothing unique about the installation of the fan. As her Honour found, it was obvious. Her Honour was correct, in my view, in concluding that in the circumstances no alternative precautions needed to be taken by the respondents. 20 In my view the applicant has not established any arguable error which would attract a grant of leave to appeal. I propose that the Court should order that the application for leave to appeal be dismissed with costs. 21 MACFARLAN JA: I agree. 22 SACKVILLE AJA: I also agree. 23 McCOLL JA: The orders I proposed are the orders of the Court. ********** 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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