The High Court determined in Jones v Bartlett [2000] 205 CLR 166 there is no obligation on a home owner or occupier to update the safety standards of a building when the Australian Standards pertaining to same were upgraded. In the Queensland District Court decision of Smith v Body Corporate for Professional Suites [2012] QDC 49 Robin DCJ determined there was no obligation on an owner or occupier of a commercial premises to improve safety standards relating to a buildings construction as the Australian Standards were upgraded. At trial, it was determined there was no obligation to test or upgrade the strength of glass panels in a foyer area of the commercial building.

Recently, the Queensland Court of Appeal has handed down their decision in the appeal. Robin DCJ’s decision was upheld: Smith v Body Corporate for Professional Suites Community Titles Scheme 14487 [2013] QCA 80.

Facts

On 21 December 2001 at approximately 8:30pm the Plaintiff sustained significant laceration injuries when she fell through a glass panel adjacent to the entrance doorway of a 14 storey commercial building. It was a commercial office building and approximately 5,000 persons would pass through the building each day.

The Plaintiff had been attending Christmas celebrations from at least 11:30am that day. She consumed approximately 10 glasses of white wine between 11:30 am and 4:00pm, and then consumed a further 6 cans of pre-mixed spirits between 4:00pm and 8:30pm. The evidence led at trial was the Plaintiff’s BAC reading would have been 0.26 at the time of her accident. It was accepted the claimant was unsteady on her feet due to her intoxication.

The Plaintiff was either resting against the glass panel, or had just come into contact with the glass panel at the time it gave way. It is possible she stumbled into it.

The glass panel was installed in 1971 and complied with the Australian Standards at the time of installation. By the time of the claimant’s accident in December 2001, the panel no longer complied with the standards, and if the panel had been installed immediately prior to the accident, safety glass would have been required.

The glass installed was merely 6mm annealed glass, which did not break from its foundations and maintain its form at the time of the Plaintiff’s fall (as laminated, or safety, glass may have). Rather, it broke into large sections of glass which resulted in significant lacerations to the Plaintiff.

In 2000 and 2001 renovation works were being performed in the entry area of the building. The works did not include an assessment of the safety of the glass (or a “glass wall”). The architect noted the glass doors were being replaced with safety glass, but no works were undertaken to the glass panels adjacent to the doorway.

Decision

The decision of the trial Judge was upheld 2:1 in the Court of Appeal. Fraser JA and Fryberg J wrote the majority judgments whilst Margaret McMurdo P handed down a dissenting judgment.

It was conceded by the Body Corporate that no glass safety audit was conducted at the time of the renovations in 2000 – 2001. Such an audit would have been relatively cheap, and would likely have identified the type of glass used adjacent to the entrance doors of the building failed to comply with safety standards as at the time of the assessment. However, the Court differed as to their opinion of a reasonable response to the risk and whether there had been a breach of duty.

Fraser JA, with whom Fryberg J agreed, found:

  • Although an occupier can have obligations under Workplace Health and Safety legislation, those obligations do not extend to appointing an expert to assess every-day risks, such as the risk of a plate of glass breaking. However, there may be a duty to appoint an expert where:
    • The threat/risk is heightened (Fraser JA gives the example of “risky electrical apparatus”); or
    • An occupier is put on notice of a defect with the building, or that the safety standards no longer remained appropriate.
  • Where a tradesman with more specialized skills has been engaged to perform and/or inspect works/damage, that expert then recommends upgrades, and an occupier’s refusal to perform remedial works is unreasonable in the circumstances, there will likely have been a breach of duty.
  • A relevant consideration is the cost of identifying and remedying health and standards that no longer comply with current requirements due to improvements since the last upgrade works, or construction – it is relevant to consider not only the alleged breach of compliance with the safety standard, but also analogous health and safety breaches for other aspects of the building.

Margaret McMurdo P disagreed with the majority and indicated the risk to the Plaintiff and other entrants to the building was so significant, particularly given the proximity to nightclubs and bars, the occupier should have identified the risk prior to the accident, and replaced the glass.

Conclusion and Implications

The Court of Appeal has indicated where no defect with the construction of a building, or part of a building, is obvious to a layman the occupier will not be held liable for non-compliance with relevant building standards. However, some possible exceptions may be where:

  • The occupier has more specialized knowledge of building standards and a defect;
  • The particular risks are brought to the attention of the occupier;
  • A tradesman with more specialized skills has been engaged to perform and/or inspect works/damage, that tradesman then recommends upgrades, and an occupier’s refusal to perform the upgrades is unreasonable in the circumstances.

A Special Leave Application is currently before the High Court.