Written by Peter CarterApril 19, 2012
The owners of one of Brisbane’s oldest high-rise office towers have escaped liability for facial scarring suffered by an intoxicated 29-year-old who fell through a sub-standard glass panel at her workplace building entry when returning there following a 2001 office Christmas party.
Conceding that he was “driven to” the conclusion by decided cases, and agreeing that some plaintiffs might access damages for a similar event, Judge David Robin ruled Jodie Smith’s circumstances fell outside the narrow specification for which building owners can be held accountable for failing to upgrade their glazing to current safety standards.
Smith had sued “Professional Suites” body corporate for its failure to audit or upgrade a large sheet glass panel at the entrance to 138 Albert Street at any time since construction in 1971 and in particular when conducting a lobby renovation that involved replacing the glass entry doors only a few months earlier.
The glass complied with the relevant quality standard at the time of construction but not with safety glass standards that were required of new construction as from 1995. The calamity occurred at about 8:30 pm on Friday 21 December following a start-of-holiday lunch at Southbank and after some of the staff had adjourned for further merriment to the now-defunct Adrenalin Bar in Charlotte Street.
Smith’s blood alcohol content was estimated – by countback – at 0.26%. His Honour accepted in the 4 day trial in March, that an audit of the foyer glass could have been conducted by classmen O’Briens for “a couple of hundred dollars” – and that it would have recommended an upgrade to the standard, of the glass panel – thereby preventing the resulting injury.
In examining more than a dozen decided cases including Jones v Bartlett, his honour found that by precedent, there just was no duty to conduct such an audit and – as the defendant was not on notice of any risks associated with the glass or the aged compliance standard – it could not be held responsible.
It would be “drawing far too long a bow”, so held the court, to interpret Australian standard AS1288-1994 – which related to the new glass doors installed – as having any relevance to “other glass in the building, even glass panels immediately adjacent”.
Moreover, the owners had been entitled to rely on the refurbishment advice of their architects who, on the evidence, had not made any recommendations to upgrade the panel. In assessing damages only for consideration should his dismissal ruling be successfully appealed, his honour noted the paucity of cases dealing with scarring and remarked as to the different gender effect of such injuries.
“Scarring consequent upon lacerations may be acceptable in the sense of not causing embarrassment in the case of males, depending on the circumstances (even on occasion having a certain cachet), but in our society that is not the case for a woman.”
Also noting that the plaintiff’s facial and neck scarring “now that it has settled, is not at all dramatic; most would not characterise it as disfiguring”, the court nevertheless “ought to respect the plaintiff’s own reaction to it”. The physical scarring and a psychological impairment of 10% as assessed by psychologist Peter Stoker thus resulted in general damages of $50,000.
The judge thought that the combination of scarring and psychological complications did, in fact, compromise the plaintiff’s earning capacity and assessed $8,000 for the past and $15,000 the future. As a final point to take from this pre-Civil Liability Act textbook illustration, the court ruled that had the defendant been liable, the plaintiff would have been found contributorily negligent to the extent of 30%.
The plaintiff’s day in court was long in the anticipation and her regret at falling short at the end will perhaps endure for some time. It may also be unfortunate that the assessed quantum will probably not warrant the risk of appeal, even if an appeal were considered viable.