Gonzales v The Owners of Strata Plan 74146 [2010] NSWDC 49

New South Wales District Court

CITATION: Gonzales v The Owners of Strata Plan 74146 [2010] NSWDC 49

HEARING DATE(S): 20 and 21 January 2010

JUDGMENT DATE: 5 February 2010

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ

1. Judgment for the defendant DECISION: 2. Plaintiff to pay the defendant's costs 3. Leave to apply in relation to costs orders, within 14 days

CATCHWORDS: TORTS - claim by a tenant against the proprietors of a strata plan for injuries received on the common property of a building in which he resided - whether the duty of care as occupier was breached - contributory negligence

LEGISLATION CITED: Civil Liability Act 2002 Strata Schemes Management Act 1996

CASES CITED: Jones v Bartlett [2000] HCA 56 Ridis v Strata Plan 10308 [2005] NSWCA 246

PARTIES: Marcus Gonzales (Plaintiff) The Owners of Strata Plan 74146 (First Defendant)

FILE NUMBER(S): 6172/08

COUNSEL: Mr M Daley (Plaintiff) Mr N Polin (First Defendant)

SOLICITORS: Brydens Law Office (Plaintiff) McCulloch & Buggy (First Defendant)

JUDGMENT The proceedings and the issues

1. The plaintiff claims damages in respect of injuries received on 24 December 2005 when his right index finger was caught in the front door to a block of units, in one of which he was living as a tenant with his wife and children. The first defendant was the occupier of the common property on which the accident occurred.

2. The plaintiff contends that the automatic closing mechanism affixed to the top of the door was either faulty or improperly adjusted, presenting a foreseeable hazard that was the cause of his injuries.

3. The defendant denied liability. In the alternative, the defendant alleged contributory negligence by the plaintiff.

4. The principal issues in relation to liability are:

· Was there a foreseeable risk of injury to the plaintiff? · Did the defendant take such care as was reasonable in the circumstances? · Did the defendant breach any duty that caused the plaintiff's injury? · If so, did the plaintiff fail to take reasonable care for his own safety?

The plaintiff's evidence

5. The plaintiff rented a unit in an apartment block at 58 Bathurst Street, Liverpool into which he moved with his family, his wife and two young children, on 14 November 2005. Access and aggress to the block of units was obtained via a glass metal framed door in a foyer area at the front of the building (see Exhibit A) being common property occupied by the defendant.

6. The front door, which opened outwards, was fixed at the top with a closing mechanism that automatically pushed the door closed after it was opened. When the plaintiff first moved in, the front door automatically closed after it was opened, at a slow gradual speed, but failed to lock shut. After several days he observed that after being opened the door would close and then lock at a fast pace. In fact, it would slam shut with force, such that the whole of the surrounding framework would shake. He also observed that there was a wind factor, and when the wind flowed directly onto the door it acted to cause the door to shut even faster and with even greater force. This situation, which involved the door closing violently and noisily, continued unchanged over the next 5 to 6 weeks, including the day of his accident, on 24 December 2005, and thereafter, according to the plaintiff, at least until the door was inspected some 10 weeks later, on 7 March 2006, by the expert retained on his behalf: see Exhibit D.

7. It is common ground that about 10 days after the plaintiff moved in to the premises, on 24 November 2005, a tradesman attended and carried out certain work on the door after a report that it was not locking properly: see Exhibit 10. The evidence does not establish what that work entailed.

8. The plaintiff's evidence was that at around midday on 24 December 2005 he was injured in the course of exiting through the front door to collect his mail from the letterbox situated immediately outside the door: see Exhibit A1. He opened the door by turning the door handle. He then took his hand off the handle and pushed the door outwards about half way with his right hand and proceeded through the doorway. There was wind. Once he had stepped outside, the door started to close quickly due to the wind. He thought it was going to hit him and he grabbed the door frame, again with his right hand, but due to the force of the wind, he was unable to hold the door and it slammed shut. He couldn't get his hand out in time and his finger was caught between the door edge and the door plate adjacent to the door handle, causing his injury.

The defendant's challenge to the plaintiff's evidence

9. The defendant challenged the plaintiff's evidence, suggesting firstly that his contention he was unable to hold the door, and was physically forced back by the operation of the wind on the door, was inherently improbable and the accident could not have occurred in the way he described. But the main thrust of the challenge was to the effect that the door was not, during the period alleged, or indeed at any time during the plaintiff's tenancy, closing in the violent and forceful manner described.

10. The defendant pointed to discrepancies between the plaintiff's version given in the witness box and the version given to the expert retained on his behalf. The defendant then called another occupant of the building, Mr Milorad Arcaba, to refute the plaintiff's evidence that the door was closing in the violent and forceful manner the plaintiff described.

11. The plaintiff's expert was Mr Robert Nicholson, an engineer, who provided a report dated 6 November 2007: see Exhibit D, in which he records (at 7.1 - 7.6):

"The Plaintiff states at the time of the claimed accident, he was in the process of exiting the main door of the block of home units…

The Plaintiff was not carrying anything in his hands and he had to exert some force with his right hand in order for the door to be pushed and swung open. Having moved forward to exit the premises, the door that the plaintiff had let go with his right hand in order to exit, violently commenced to swing closed.

The plaintiff swung about on his left foot and instinctively he grabbed edge of the closing door with his right hand to stop the door slamming shut.

With the door shutting with great force, the Plaintiff's right index finger was caught in the area between the striker plate and just below the lock and the force of the close fitting metal door acted like a guillotine…

As the Plaintiff claims the day was windy… it appears then that the probable factors in the slamming force that was exerted by the door would have come from the wind and/or the door closer which it appears may not have been adequately damped in its closing motion."

12. That version of the accident is largely consistent with the version given by the plaintiff in evidence. The plaintiff did say in evidence that the reason he grabbed the door was because he thought the door was going to hit him. But I don't see that anything turns on that difference. He also said in evidence that he pushed the door open easily. That difference does not in my view sit easily with the plaintiff's assertions about the effect of the wind on the door at the time of his accident.

13. Mr Arcaba was the owner of a number of units in the building at the time of the accident. He resided in one unit and used another for his business, being unit 18 on the ground floor, situated adjacent to the front door: see Exhibit 6. Mr Arcaba used the front door frequently, up to 3 or 4 times a day, to move between the unit in which he lived and unit 18 in which he worked, the door to which was on the outside of the building. He did not recall the front door slamming closed in the violent manner described by the plaintiff, in late 1995 or at any time, nor had anyone complained to him about the door. If indeed the door had been consistently closing so hard as to shake the surrounding framework he would have observed it, and he would have heard it from his office.

14. Mr Arcaba recalled that the plaintiff had told him he had injured his finger in the front door, but he never said how the accident occurred, and made no complaint that the door had closed in the violent manner described.

15. Mr Arcaba confirmed that since the plaintiff's accident an aluminium plate has been installed at the point of the door striker, adjacent to the door handle, that protrudes some 5 cm beyond the gap between the door and the adjacent doorframe. He conceded that this plate would prevent someone holding the door from getting their hand caught in the gap between the door and the doorframe.

16. I accept the evidence of Mr Arcaba as truthful and accurate. He was an independent witness who had no direct interest in the outcome of these proceedings. He gave his evidence in a straightforward manner, and what he said about the door not slamming shut in a violent manner strikes me as more plausible than the plaintiff's assertions. As Mr Arcaba pointed out, his children were using the door daily, and if there had been a problem of the sort described by the plaintiff, he would have been most concerned.

17. In these circumstances I was not prepared to accept the plaintiff's evidence about the behaviour of the door in the absence of corroboration. There was no corroborative material, not from his wife, and not from any other resident. Moreover, the problem so described by the plaintiff was inconsistent with what the expert engineer, Mr Nicholson, found when he inspected the front door some 10 weeks later.

18. I am, therefore, not satisfied that the front door was slamming shut in a violent manner in the weeks preceding the plaintiff's accident. Nor am I satisfied that the plaintiff made any complaint about the front door prior to his accident. I find, however, that subsequent to his accident an aluminium plate was installed at the point at which the plaintiff's finger was jammed in the accident. Whilst this may have eliminated the specific pinch point that caused the accident, there is no evidence that it has removed a risk of injury from someone holding the door in the manner the plaintiff did, upon the door closing: see s 5C of the Civil Liability Act 2002.

The expert evidence

19. The expert evidence from plaintiff's engineer, Mr Nicholson, was uncontroverted: see his report dated 6 November 2007 (Exhibit D). He inspected the front door some 10 weeks after the accident, on 7 March 2006, and found that it was fitted with a large hydraulically operated door closer that could be adjusted for closing speed. Mr Nicholson tested the adjustment by holding the door wide open and allowing it to close, in non-windy conditions. He timed the closing time at 2.2 seconds, but observed there was no discernible "damping" during the final 300 mm. In his opinion, the door closer was not correctly adjusted on installation so as to slow down the closing speed during the final 300 mm. The report does not specify what the correct adjustment should have been, but it seems that in the expert's view, an ideal total closing time, including "damping", would have been 4.0 seconds. The adjustment to effect damping during the final 300 mm could have been very simply achieved, by turning a small screw in the end of the door closer with a screwdriver.

20. The report addressed the effect of the wind on the door, and concluded that there would have been a wind tunnel effect when the door was opened. The expert concluded:

"The positive pressure on the door outside and the negative pressure on the inside would combine to give a large force causing the door to slam shut which could only have been controlled in closing speed by the proper adjustment of the hydraulic damping control screws in the end of the door closer: (at 9.4).

The subject door had not been properly installed and commissioned to ensure safe operation of the door while closing, with the hydraulic controls not adjusted to control the door for a safe speed of closing and to resist the force of wind loading: (at 13.2).

I conclude that the subject door was fitted with a door closer which had not been adjusted to control and dampen the speed of the closing action to a safe speed as the door swung towards closure on the doorjamb causing a hazard, which hazard would have been made worse in windy weather conditions: (at 13.6)."

21. The engineer was also critical of the door design:

"It was noted that the area of the door latch had minimal clearance on the striker plate on the doorjamb that formed part of the glazed side panel and that the edges of the metal frame lock, though rounded with a small radius on the edges, formed a close fitting shearing edge when lined up with the striker plate: (at 8.4)."

22. The block of units was built about a year before the accident and conformed to all regulatory requirements: see Exhibits 8 and 9. The engineer noted that the applicable building code says nothing about door closers. In his opinion, however, doors for common entrance to blocks of home units should have properly adjusted door closers fitted to prevent slamming in the event of a strong wind: (at 12.4).

The management structure

23. The obligations of the owners corporation having the management and control of the common property of the block of units, including the front door that caused the plaintiff's injury, was delegated to an Executive Committee consisting of 3 unit owners: see Exhibit 7. The evidence did not establish whether the three members of the committee during the period prior to the plaintiff's accident were residents or absentee landlords. An independent contractor, All Suburbs Strata Management, had been appointed as the managing agent under s 27 of the Strata Schemes Management Act 1996, and all functions of the owners corporation, the Executive Committee and office bearers were delegated to the managing agent.

24. The plaintiff made a faint attempt to suggest that he had seen members of the Executive Committee on the premises, but he ultimately conceded he had no idea what the management structure for the body corporate was, or who the members of the Executive Committee were.

25. It was common ground that the plaintiff had made no complaint about the front door to anyone, and that there was no evidence that the Executive Committee, or indeed any unit owner, was aware that there was any problem with the front door. The evidence as to any knowledge on the part of any responsible person was, at its highest, that following a complaint that the front door was not locking properly a tradesman attended and carried out certain work on the door on 24 November 2005: see Exhibit 10. What work he performed is not known, but it might be inferred that if subsequently the door did lock after closing, then some adjustment was made to the door closer.

The plaintiff's case

26. The plaintiff's primary complaint was that the door closer was incorrectly adjusted, creating a foreseeable risk of injury, particularly in windy conditions: see Particulars of Negligence (c), (d), (e) and (k). It was alleged that the door should have been adjusted to slow down the speed of closing, and in particular to ensure damping occurred in the final 300 mm of closing. As I understand the plaintiff's case, it was also alleged that the door was malaligned with the doorframe so that a sharp metal edge was derived: see Particulars of Negligence (f), (i), and (j). The risk of injury presented by these two hazards was to be avoided by very simple actions: In the case of the door closer, it could be correctly adjusted by turning a small screw in the door closer, and in the case of the metal edge, by removing it. It was contended that the management of the owners corporation ought to have been aware of the risk of injury posed by these hazards.

27. It was submitted firstly that if owners were using the door on a daily basis, the hazard posed by the maladjusted door closer was obvious. The assumption is that owners would have brought the problem to the attention of the body corporate, or the managing agent. It was not made clear what it was that ordinary lay users of the door should have observed and what it was they should have brought to the attention of those responsible for the maintenance and repair of the common property.

28. Insofar as it might be alleged that what the resident owners should have observed was that the door was consistently closing with a force so violent that the doorframe was rattling, I have rejected that version of the existing state of affairs. Absent that there was nothing to alert the ordinary lay user of the door to any particular problem with the closing mechanism.

29. It was submitted, secondly, that the body corporate or its representatives should have had a system of regular inspection of sufficient frequency to detect the hazards. As to the sharp metal edge due to malalignment of the doorframe, it may be doubted that such a defect would have been readily observable to a lay person carrying out an inspection. Likewise the maladjustment of the door closer. There was, in the circumstances surrounding this accident, no obligation on the body corporate to have the door subjected to some expert assessment: Jones v Bartlett [2000] HCA 56 at [19].

30. The plaintiff's final submission was that the body corporate should have arranged for an inspection of the door following the work carried out by the tradesman on 24 November 2005, and that such an inspection would have revealed the hazards alleged. I am not persuaded that a body corporate taking reasonable steps would be obliged to so inspect the work of a tradesman. Presumably, once the identified problem of the door not locking shut was fixed, it had no further obligation to inspect for additional problems of which it was not on notice: Ridis v Strata Plan 10308 [2005] NSWCA 246 at [6] and [127]. And as I have previously observed, it may be doubted whether such a lay inspection would have detected the hazards alleged.

31. I am not satisfied that there was a foreseeable risk of injury to the plaintiff. Nor am I satisfied that the defendant failed to take reasonable care in the circumstances. I find further, that the defendant did not breach any duty owed by it to the plaintiff as the occupier of the common property on which the front door was situated.

32. There will, therefore, be a verdict and judgment for the defendant.

Contributory negligence

33. It is not necessary to determine the issue of contributory negligence. However, if it were to be considered that the defendant is liable, on the basis that it were to be accepted that the risk of injury was foreseeable by reason of the operation of the door, then in my view that must have been equally foreseeable on the part of the plaintiff. Whilst I do not think that in those circumstances it would be just and equitable to determine that the plaintiff's damages should be reduced by 100%, with the result that the claim for damages should be defeated: s 5S of the Civil Liability Act 2002, in considering the issue of an appropriate reduction, taking into account the relative culpability of the plaintiff in comparison to that of the defendant, I would assess the required reduction at 90%: Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALR 529.

Assessment of damages

34. Notwithstanding the findings I have made on liability I am required to provide an assessment of the damages I would have awarded to the plaintiff in the event of a verdict in his favour. That the plaintiff suffered an injury that will affect him for the rest of his life undoubted. In my view, however, the effect of his injury on his capacity to earn was exaggerated.

35. Any damages to be awarded fall to be determined and assessed under the general law as modified by the Civil Liability Act 2002.

36. The plaintiff was born on 18 September 1979 and is now 30 years old. At the time of the accident he was 26. He is right hand dominant. As a result of this injury he suffered a partial amputation of the terminal phalanx of his right index finger. He underwent surgery at Liverpool Hospital.

37. There has been a substantial recovery, but the plaintiff has a loss of effective length in the digit of 1.2 cm. The stump is well rounded but there remains a small pigmented graft area at the side of the fingertip. The fingernail is permanently reduced with a 'parrot beak' deformity associated with the loss of some of the underlying bone, and nail regrowth is deformed and curved ventrally. The affected finger largely has normal sensitivity but there persists a small area of hypersensitivity at the medial aspect of the distal phalanx. Light pressure or contact creates a painful response. Movement in the finger is otherwise unrestricted, and he has full flexion and extension. He has difficulty gripping and holding small objects where that involves use of the hypersensitive region. Thus he avoids use of the finger for typing or keyboard activity, tying knots, unscrewing jars and the like.

38. The medical opinion is to the effect that there is some neuroma sensitivity in the residual digital nerve that is likely to persist and that surgical intervention is problematic such that "results cannot be guaranteed", and not, therefore, desirable.

Out-of-pocket expenses

39. The plaintiff claims past out-of-pocket expenses totalling $2,879.85. The arithmetic was agreed. I am satisfied that the claim is reasonable and I would have allowed it.

40. Turning to the future, the plaintiff makes a claim of $5,000.00 for the estimated cost of surgical intervention to address the neuroma. The claim was opposed by the defendant.

41. Notwithstanding the view of Dr McKessar that future operative treatment is not desirable, the plaintiff says that he wants to undergo the operation and in my view that is an entirely reasonable desire. The amount claimed is supported and on the basis that the surgery could be undertaken sooner rather than later, does not require discount. I would, therefore, have allowed this claim.

Economic loss

42. The plaintiff claims economic loss for the past and a loss of earning capacity for the future.

43. The claim for past economic loss of $31,803.00 consists of three separate periods. The first of these periods was the three weeks immediately following the accident during which it is not disputed that the plaintiff was totally incapacitated for work. He claims a loss of wages at $893.00 nett per week, a total of $2,679.00. The defendant conceded this claim and I would have allowed it.

44. The second period claimed was for some 87 weeks from about mid 2006. The submission was that but for his injury the plaintiff would have applied for and received a promotion and earned an additional $150.00 nett per week. This claim was opposed. In my view, the evidence does not support the claim. There is no doubt that the plaintiff had difficulties with his pre-accident work as a result of his injured finger, particularly with keyboard requirements in respect of data entry, but he compensated for his disability by using another finger, and the evidence establishes that not only was he able to do his normal job, but his employer wanted to keep him on. There was no evidence that a promotion was in the offering, but if it was, neither was there any evidence that it involved any work that he was incapable of performing. The probability was, on the contrary, that it would have involved less hands on activity and more supervision. I would have rejected this claim.

45. The third period claimed was for some 18 weeks from February 2008 to June 2008 when the plaintiff obtained his current position with Coles Logistics. During this period, the plaintiff was unemployed and he alleges that is a consequence of his disability. The reality, however, is that the plaintiff voluntarily resigned from his previous job, and his unemployment was a matter of choice, not because of any incapacity. I am not satisfied that he was not coping with that employment due to his disability. I would also have rejected this claim.

46. Accordingly, I would only have allowed past economic loss of $2,679.00 to which I would have added lost occupational superannuation of $295.00, a total of $2,974.00

47. The claim for future economic loss was for $113,934.00, on the basis of a weekly loss of $150.00 nett till the age of 67, less a discount of 15% for vicissitudes. The basis for the claim was that the plaintiff will in the future be disadvantaged in the employment market by reason of his permanent disability. It was submitted that this will manifest itself in the event that he were to lose his current employment or some future employment, he would have greater difficulty, or a delayed capacity, to obtain new employment. The reality is, however, that in his present employment the plaintiff is earning as much if not more than he would have been earning had he continued in his pre-accident employment, even if he had been promoted. He has not been prevented from doing his work, nor do I accept that he will be prevented or impeded by his disability in the future from obtaining and performing work on a consistent basis at a similarly remunerative level. Whilst his disability may theoretically have diminished the plaintiff's earning capacity, I am not satisfied that the supposed diminution will be productive of any actual financial loss.

48. For these reasons I find that the plaintiff has not suffered any loss of earning capacity. I would not have allowed his claim, nor made any award of damages for future economic loss.

Non-economic loss

49. The final head of damages to be considered and assessed is non-economic loss. Counsel for the plaintiff submitted that the severity of the non-economic loss as a proportion of a most extreme case should be assessed at 25%. He is a young man who will have to cope with a lifelong disability in his dominant hand. That disability impedes him in a wide range of social and recreational activities.

50. The defendant submitted that the appropriate assessment is in the range of 15% to 18%.

51. I would have assessed the appropriate proportion at 20%. That currently produces a statutory amount of $16,500.00: s 16(3) of the Civil Liability Act 2002.

Total damages

52. The calculations as to the damages are set out in the Table below. The table sets out the total amounts for each individual head of damages as I would have found them, in summary form, on a rounded up basis, together with the total damages assessed.

Heads of Damage Amount Past out-of-pocket expenses $ 2,880.00 Future medical expenses $ 5,000.00 Past economic loss (including superannuation) $ 2,974.00 Future economic loss (including superannuation) Nil Non-economic loss $16,500.00 Total damages $27,354.00

Costs

53. Orders for costs are to be made in accordance with r 42.1 and r 42.2 of the UCPR, unless some other order or orders are appropriate. The prima facie order that is appropriate is for the plaintiff to pay the defendant's costs on the ordinary basis. There is nothing before me, at this point, to indicate that some other order is appropriate, but I will reserve leave to either party to apply in that regard.

Disposition 54. There will, therefore, be a verdict for the defendant.

55. I direct the entry of judgment for the defendant.

56. I order the plaintiff to pay the defendant's costs, on the ordinary basis.

57. I give leave to the parties to apply for some other costs order or orders provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought.

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