Watch your step please! Does an occupier's failure to follow recommendations to replace components of a passenger lift amount to a breach of duty of care? – Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2017] NSWCA 40
Originally Published by David Chong on Monday, April 10, 2017 12:00:00 AM
Author: David Chong
Judgment Date: 10th March, 2017
Citation: Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2017] NSWCA 40
Jurisdiction: New South Wales Court of Appeal1
Principles
- An occupier can generally discharge its duty of care by engaging an appropriately qualified and experienced technician to carry out service and maintenance of lifts.
- Knowledge on the part of an occupier of levelling inaccuracy will only be found to be a breach of duty if the occupier also had knowledge that the levelling inaccuracy would necessarily be dangerous to passengers.
Background
On 12 August 2008, the plaintiff entered premises occupied by AMP Capital Investors Ltd (AMP) which were located at 20 Loftus Street, Sydney. The plaintiff entered a lift and made her way to level one of the building. The plaintiff claimed that, as she was exiting the lift, the floor of level one was higher than the floor of the lift, causing her to trip and stumble, suffering injury to her neck as she manoeuvred herself to regain balance and prevent herself from falling.
Supreme Court of New South Wales (Supreme Court) decision
Proceedings were commenced in the District Court of New South Wales against the owner of the building, Kent Street Pty Ltd; the occupier of the premises, AMP; the lift technician, ThyssenKrupp Elevator Australia Pty Ltd; and the building supervisor. Because of the quantum particularised by the plaintiff, the proceedings were transferred to the Supreme Court.
On 6 April 2015, Fagan J delivered judgment in favour of the defendants.
New South Wales Court of Appeal (Court of Appeal) decision
On 6 July 2016, the plaintiff filed appeal proceedings against all defendants but ultimately only proceeded against AMP.
Despite the plaintiff pleading 14 separate grounds of appeal, the appeal only proceeded on three material grounds. Two grounds of appeal related to the trial judge's alleged error in making a dispositive finding involving the rejection of the plaintiff's evidence as to how her trip and stumble had occurred. The final ground of appeal related to the trial judge's finding as to the scope of the duty that AMP owed to the plaintiff.
The trial judge did not accept that, after she had tripped, the plaintiff held the lift, called the building supervisor, and then observed the height differential between the floor of level one and the floor of the subject lift, all before the lift doors closed and moved on to another floor.
The question of AMP's duty of care and whether there had been a breach of that duty owed to the plaintiff was a point of interest.
It was accepted that the trial judge found that AMP owed lift passengers, including the plaintiff, a duty to exercise reasonable care for their safety. The trial judge found that AMP had discharged its duty of care by engaging an appropriately qualified and experienced lift technician to perform regular service and maintenance of the lifts.
The plaintiff submitted that AMP's duty of care also required it to replace lift mechanisms if so advised by the lift technician, and AMP's failure to do so amounted to a breach of that duty.
In 2006, the lift technician carried out a 'hazard and risk assessment for existing lifts' in line with an industry code of practice, which identified a level of risk requiring the replacement of the operating machinery. The risk assessment identified a risk with respect to the floor levelling machinery, with such risk being regarded as 'high'. Further, the recommended corrective action was to 'change the regulated drive'.
The letter which accompanied the risk assessment stated:
Supreme Court of New South Wales (Supreme Court) decision
Proceedings were commenced in the District Court of New South Wales against the owner of the building, Kent Street Pty Ltd; the occupier of the premises, AMP; the lift technician, ThyssenKrupp Elevator Australia Pty Ltd; and the building supervisor. Because of the quantum particularised by the plaintiff, the proceedings were transferred to the Supreme Court.
On 6 April 2015, Fagan J delivered judgment in favour of the defendants.
New South Wales Court of Appeal (Court of Appeal) decision
On 6 July 2016, the plaintiff filed appeal proceedings against all defendants but ultimately only proceeded against AMP.
Despite the plaintiff pleading 14 separate grounds of appeal, the appeal only proceeded on three material grounds. Two grounds of appeal related to the trial judge's alleged error in making a dispositive finding involving the rejection of the plaintiff's evidence as to how her trip and stumble had occurred. The final ground of appeal related to the trial judge's finding as to the scope of the duty that AMP owed to the plaintiff.
The trial judge did not accept that, after she had tripped, the plaintiff held the lift, called the building supervisor, and then observed the height differential between the floor of level one and the floor of the subject lift, all before the lift doors closed and moved on to another floor.
The question of AMP's duty of care and whether there had been a breach of that duty owed to the plaintiff was a point of interest.
It was accepted that the trial judge found that AMP owed lift passengers, including the plaintiff, a duty to exercise reasonable care for their safety. The trial judge found that AMP had discharged its duty of care by engaging an appropriately qualified and experienced lift technician to perform regular service and maintenance of the lifts.
The plaintiff submitted that AMP's duty of care also required it to replace lift mechanisms if so advised by the lift technician, and AMP's failure to do so amounted to a breach of that duty.
In 2006, the lift technician carried out a 'hazard and risk assessment for existing lifts' in line with an industry code of practice, which identified a level of risk requiring the replacement of the operating machinery. The risk assessment identified a risk with respect to the floor levelling machinery, with such risk being regarded as 'high'. Further, the recommended corrective action was to 'change the regulated drive'.
The letter which accompanied the risk assessment stated:
"Whilst there are areas of non-compliance when compared to the current lift code AS 1735 2001, this by no means affects the day-to-day operation of your lifts."
The lift technician gave evidence at trial as to the circumstances of the risk assessment and the fact that the reported error on the floor levelling machinery was based on the technology available in lifts the age of the subject lift, rather than a personal inspection and measurement undertaken of the subject lift.
The trial judge held that, although AMP ought to have known of the levelling inaccuracy, there was insufficient evidence to find that AMP had knowledge that the levelling inaccuracy would necessarily be dangerous to passengers.
Basten JA, with whom McColl and Leeming JJA agreed, found that the plaintiff had failed to demonstrate there had been an error in the reasoning of the trial judge in finding that there had been no breach of duty on the part of AMP. The plaintiff's appeal was therefore dismissed.
Why this case is important
This case lends itself to the importance of properly considering the precautions against a risk of harm which defendants should take in order to avoid a finding of negligence pursuant to s 5B of the Civil Liability Act 2002 (NSW).
Importantly, recommendations to undertake modifications to equipment or systems of work must be considered in context, and the failure to action those recommendations does not in itself lead to a finding of negligence on the part of the defendant. There must also be knowledge of the risk.
Importantly, recommendations to undertake modifications to equipment or systems of work must be considered in context, and the failure to action those recommendations does not in itself lead to a finding of negligence on the part of the defendant. There must also be knowledge of the risk.
- Basten, McColl and Leeming JJA.