Old Building Standards No Excuse for Occupiers’ Failure to Fix by Dwana Walsh | November 2006
MORGAN V OWNERS OF STRATA PLAN 13937 & ANOR [2006] NSWSC 1019 In Morgan v Owners of Strata Plan 13937 and Anor the NSW Court of Appeal found that it is no excuse for an occupier to fail to rectify a risk simply because the building complied with old building standards.
The Facts The Plaintiff, Thomas Patrick Morgan, was exiting through the front door of his home unit block when he fell down the steps, injuring his back. Mr Morgan alleged that when he was halfway through the security door, his left toe caught something, causing him to stumble forward quickly. According to Mr Morgan, as he tried to bring his left foot forward on the wet tiles of the landing it kept slipping, eventually coming to ground 500 - 700cm outside the security door. After hitting the ground, Mr Morgan’s next recollection of the accident was when he looked towards where he had tripped, seeing a carpet off-cut under the door, which he assumed was what had caught his toe and caused him to trip. Mr Morgan commenced proceedings claiming that the defendant body corporate (“the Owners”), in which is vested the care management and control of the common property in the block, failed to take reasonable precautions for his safety and were therefore responsible for his injuries.
The Dispute The Court accepted that the accident occurred in the manner described by Mr Morgan. Namely, that he was not running at the time; his fall was initiated by tripping on a carpet off-cut that was holding open the front security door; and as a result he slid across the wet tiles and down the steps. After the factual issues had been decided, the dispute centred around the determination of the following questions: 1.
Was the failure to remove the carpet off-cuts on which plaintiff tripped negligent?
2.
Was the failure to provide an external slip-resistant doormat on tiled landing on which plaintiff slipped negligent?
3.
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To what extent - if any - was the plaintiff contributory negligent?
T U R KSLEGAL
The Decision WAS THERE A BREACH OF DUTY? The content of the duty of care in this case had to be determined against the specific risk of harm and the particular circumstances. The risk of harm here being the risk of injury to a person exiting the premises of tripping on a carpet off-cut wedged under the door and/or slipping on the tiles of the landing. The particular circumstances being where an occupier was the body corporate of a home building unit and the entrant an inhabitant of one of those units. In deciding the reasonableness of the response to the risk, the Court balanced the fact that the body corporate did not have the same resources as a public authority/commercial entity to implement safety measures with the substantial degree of control exercised by the body corporate over common areas.
WAS THE FAILURE TO REMOVE CARPET OFF-CUTS NEGLIGENT? With respect to the carpet off-cuts which had been present for some years before the accident, the court held that, to the extent they posed a danger of tripping, it was an obvious one. Furthermore, occupants such as Mr Morgan, who travelled through the area daily, must have been aware of their presence, and aware that they were sometimes used to prop the door open. Even if their removal would have been easy and inexpensive, the court held that owing to their obviousness, their utility, and the slight risk, the failure to remove the off-cuts was not negligent.
WAS THE FAILURE TO PROVIDE AN EXTERNAL SLIP-RESISTANT DOOR MAT ON THE TILED LANDING NEGLIGENT? The provision of a weatherproof external door mat was the standard recommended by the 1994: Slip resistance of pedestrian surfaces Part 2: Guide to the reduction of slip hazards. The Court held that such a doormat would have considerably reduced the risk of a person exiting the premises slipping and the body corporate’s failure to provide one was therefore causative of the plaintiff’s injuries. Although the degree of risk of a person slipping on the tiles was not shown to be great, the Court took the view that the risk was foreseeable and the remedial action suggested involved little difficulty or expense. “Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.”
WAS THERE CONTRIBUTORY NEGLIGENCE? The plaintiff’s failure to appreciate or observe the off-cut, when exiting a foyer with which he was familiar and with knowledge that the off-cuts were often used as doorstops, was held to be a disregard for his own safety, contributing materially to his damages. However, the failure to provide the slip mat bore the greater responsibility given that even without a trip a person exiting might have slipped on wet tiles, and that an appropriate mat would have enabled the plaintiff to recover his balance. The plaintiff’s contributory negligence was assessed at 35%.
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T U R KSLEGAL
Implications While courts have previously held that a body corporate need not rectify a building to comply with later nonmandatory standards that did not exist when it was built, such decisions were decided with respect to the fabric of the building. Morgan v Owners Strata Plan 13937 supports the proposition that a body corporate cannot fail to implement obvious precautions which can easily be taken, just because it had complied with standards relevant at the time of the building’s contruction.
For more information please contact: Dwana Walsh Lawyer T: 02 8257 5702 dwana.walsh@turkslegal.com.au
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