The nuts and bolts of duty of care in balcony falls – Swift v Wearing-Smith [2016] NSWCA 38

Prior to purchasing a residential property (the property) in February 2003, Anthony John Swift (first defendant) and Kim Louise Swift (second defendant) (the defendants) commissioned a building inspection report which revealed corrosion on the metal lugs and posts of the balustrade of the first floor balcony. The building inspector recommended rust proofing and repainting, although these recommendations did not appear under the headings "Issues" and "Safety Concerns" contained within the report.

In 2006, the defendants engaged a painter, Mr Mesker, to scrape the rust scale and flaking paint on the balustrade, treat the affected rusted areas and repaint with an all metal primer and epoxy metal enamel.

On 5 November 2011, Peter Wearing-Smith (the plaintiff) was at the property celebrating his wife's birthday when a framed glass panel, comprising part of a balcony balustrade, gave way as he came into contact with it, causing him to fall from the first floor balcony. The plaintiff brought proceedings in the District Court of New South Wales before Levy DCJ who found in his favour. His Honour considered three issues in his judgment: the probable mechanism of the glass panel giving way; whether the plaintiff established breach of duty of care and contributory negligence.
The defendants denied having any concerns with the balustrade after it was treated and painted in 2006 and denied that a quote sought from a fencing contractor for the replacement of the balustrades in 2010 was in response to any defect which was known to them. Much of the oral evidence went to how the accident occurred and the force at which the plaintiff fell and/or leaned on the glass panel before it gave way and ultimately the mechanism by which the glass panel gave way. The plaintiff had little recollection of what occurred.
The plaintiff relied upon the evidence of his wife and his close friend who believed the plaintiff stood up and caught his foot on something, causing him to stumble forward and reach out for the balustrade when it gave way. In contrast, the first defendant and another guest at the party gave evidence that the plaintiff stumbled and hit the glass panel hard and square with his shoulder before going over. His Honour accepted the version of events given by the plaintiff's witnesses, finding the version of events given by the first defendant and his witness were tailored, dramatised and unreliable.

The plaintiff's expert, Mr Burn (a civil engineer), found the securing bolts of the balustrade had corroded sufficiently so that when mild pressure was applied on the glass panel, the bolts snapped causing the glass panel to swing down. The defendants called the pool fencing contractor, who provided the quote in 2010. At the time of the 2010 inspection, he inspected the balustrade, tested the posts and found them to be solidly attached. Following the accident he again inspected the balustrade and found all the supporting posts, brackets and bolts of the structure were in order, albeit he did not actually see the bolts but assumed their presence having regard to the other hardware in place. His Honour found the evidence of the fencing contractor was unreliable and that he lacked any formal qualifications. He accepted the bolts failed due to the corrosion.

Critically, his Honour found that the defendants knew or ought to have known there was a potentially dangerous defect in the balustrade due to corrosion identified in the pre-purchase inspection report. In addition, there was a lack of maintenance between 2006 and the date of accident. Consequently, he found that the defendants failed to take reasonable steps to either rectify or address the defect or alternatively, failed to isolate the balcony from guest access. His Honour awarded damages in the sum of $425,000 plus costs.

The defendants appealed on eight grounds, five of which related to evidentiary issues, with the remaining grounds relating to duty of care and breach. In a 2:1 majority decision, the Court of Appeal allowed the appeal.

The Court of Appeal found that the trial judge erred in rejecting the entirety of the first defendant's evidence on credit grounds because it was not put to either witness that they concocted their evidence. Nor was it put to the first defendant's witness, the guest at the party, that he was affected by alcohol and thus unreliable. It was accepted that the force at which the plaintiff hit the glass must have been more than merely leaning on it, as the evidence of the plaintiff's wife and close friend of a stumble was consistent with the evidence of the first defendant and his witness.

The Court of Appeal did not agree with the trial judge's dismissal of the fencing contractor's evidence on the basis he was not qualified. The fencing contractor had been a pool fencing contractor for 10 years and would have known the significance of the presence of flanges or lugs and the function they performed. He had formed the view the balustrade was safe with the posts in good working order, with no apparent signs of rust or any other form of deterioration or any other signs of structural shortfall. While his memory was not perfect, he recalled important details of the post/flange structure that had not been reported by Mr Burn. It was neither fair nor accurate to reject his evidence due to a faulty memory.

Turning to the evidence of Mr Burn, the Court of Appeal found a number of errors and assumptions in his report. His findings were not adequately explained and his report went no further than identifying the failure of the bolts as a possible mechanism for the accident. There was no evidence that the bolts were rusted, nor that they were the probable cause of the accident. In the circumstances, the testimony of the fencing contractor was preferred over Mr Burn.

The Court of Appeal found the timeline for the scope of the duty provided by the trial judge was impermissible based on the High Court of Australia's decision in Vairy v Wyong Shire Council², as it was retrospective; looking back from the time of the accident to determine breach. Rather, the Court of Appeal confirmed that breach of duty of care was to be determined prospectively and that the focus on the balustrade in the inspection report was not a proper basis for breach but rather focus on the entire inspection report was required. Therefore, it followed that the defendants did not breach any duty of care owed to the plaintiff and had no burden to take any precautions to avoid the risk of harm in the circumstances.

On the basis of the above findings, the appeal was allowed with the verdict and judgment in favour of the plaintiff set aside.

It is important when determining if a duty of care exists that insurers look at the facts of each case prospectively, rather than retrospectively. In other words, in the case of a residential homeowner, do not look at the failure of a balustrade and, with the benefit of hindsight, determine what could reasonably have been done to avoid the failure. Rather, put yourself in the shoes of the homeowner and determine what a reasonable person would do in those circumstances.

Using this case as an example, there was nothing in the pre-purchase inspection report to put the defendants on notice of the danger of structural failure. The report did not list the balustrade as a safety concern or issue. Painting and rustproofing was identified as an adequate response. There was no reason to engage an engineer to inspect the balustrade. When looking prospectively at the circumstances of a claim such as this, the response of the homeowner was reasonable.