Foot and ANOR v Emery and ANOR B65/1997 [1998] HCATrans 423 (20 November 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B65 of 1997

B e t w e e n -

ALEXANDER JOHN FOOT and JUDITH FOOT

Applicants

and

JAMES EMERY and KATHRYN MARY EMERY

Respondents

Application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 20 NOVEMBER 1998, AT 11.11 AM

Copyright in the High Court of Australia

MR A.J. FOOT: Your Honour, I am Alexander John Foot and I am appearing on behalf of my wife, Judith Foot, and myself.

MR K.C. FLEMING, QC: If it please the Court, I appear on behalf of the respondents. (instructed by Messrs McInnes Wilson)

GLEESON CJ: Yes, Mr Foot.

MR FOOT: Your Honour, my wife and I were invited to Jim Emery's birthday party. We, along with other invitees, were on the upper back deck of his residence about 8 pm on 8 January 1994. The deck collapsed and we were injured. Since then we have ascertained that the owner, James Eric Emery, knew the deck was faulty and deliberately concealed that knowledge in sworn evidence to the courts, evidence which I will submit.

Your Honour, I first turn to page 39 of the application book, which is Justice Cullinane's decision, a decision which the other two judges of the court below agreed with. In that decision Justice Cullinane referred to the Stannus v Graham Case, which is on my index, on which he had based his reasons for allowing the appeal. Your Honour, I submit that the Stannus Case has little application to a case where an occupier has invited more than 20 people onto a deck, which he had recently been informed had structural defects. The reference which Justice Cullinane used is on page 61,562, reason 2 of the Australian Torts, where he says:

An occupier of a residential property does not have a duty to inspect the premises for the purpose of discovering unsuspected defects.

Justice Cullinane in his reasons or judgment, which is set out on page 39, implied that the Stannus decision overrules the decision of Australian Safeway Stores Pty Ltd v Zaluzna (1987), which the Australian Safeway Stores said:

An occupier's duty is to take reasonable care to avoid a foreseeable risk of injury to persons entering upon his/her premises in the circumstances in which the respondent did so here.

The point that Justice Cullinane raised was:

the duty does not require an occupier to inspect premises for the purpose of discovering unknown and unsuspected defects.

And he infers that this point overrules the Safeway decision.

Your Honours, the High Court decision handed down in Northern Sandblasting Pty Ltd v Harris, which is index 2, on 14 August 1997 states that:

The relationship between landlord and tenant and the tenant's household is not unlike that of occupier and invitee -

which, in this case, is James Emery and ourselves -

in that the state of the premises is known or can be ascertained by the landlord.

It also goes on to say:

A landlord's duty is not limited to defects of which he or she is aware.....the duty extends to defects discoverable on inspection.

Your Honours, this decision, I submit, directly overrules the Stannus judgment. Accordingly, Justice Cullinane, by this High Court judgment, is shown to be wrong in his determination of this matter. The Cullinane judgment stated that defendants were not liable, because the defendants were not negligent by not discovering unsuspected defects in the structure. I submit that the judgment of the court below was in error, because the Stannus ruling, which they based their conclusion, was overruled by the court's decision in Northern Sandblasting. Consequently, the allowance of the appeal by the court below was wrong in law, because Northern Sandblasting rules that an occupier's:

duty extends to defects discoverable on inspection.

Your Honour, there was nothing about that deck that could not be discovered.

Your Honours, I refer you now to page 66 of the application book, which relates to the inspection that was carried out by the witness, Mr Payne, whose evidence is also in the application book, where he says he advised Mr Emery that the deck had rotten bearers, rotten joists, had dropped by one centimetre and a joist had dropped out of its rebate. This was the evidence given by Mr Payne in the primary court:

The defects which were apparent would surely show a foreseeability of risk to people going on to the structure. Also, as has been previously outlined above, even if it is deemed that the deck collapsed from its faulty method of construction - despite the emphatic evidence showing the deck collapsed from a cause related to the rot -

that is the cause that Mr Payne advised the owner, Mr Emery, of -

the Respondents were still negligent according to law as the defects were discoverable on inspection.

As I have said, your Honours, there was nothing about that deck that could not be discovered. It was a deck that had been erected for over 14 years, described by the Noosa Shire Council's principal building surveyor as an "unsubstantial construction" - deck.

KIRBY J: But is it not the case that what Mr Payne saw was only a very small area and that he expressed the view that it had nothing to do with the collapse of the deck?

MR FOOT: He expressed that view, your Honour, in hindsight.

KIRBY J: Well why was it not open to the Court of Appeal to take the view that that was fatal to your claim? I mean, you cannot really expect every owner of a deck, especially in Australia, near the coast, to be going around inspecting against the possibility that it might collapse.

MR FOOT: No, your Honour, but - - -

KIRBY J: Especially when it was only built quite recently and it was done by, apparently, qualified people.

MR FOOT: Your Honour, I must correct you there, with respect. It was build 14 to 20 years previously. It was not a recent construction, and that is pointed out in the building surveyor's point, "the deck was obviously not new and some deterioration of the timber was noted".

The evidence that Mr Payne gave was this. Mr Lynch, our barrister, asked him:

So when you observed the dropping and the rot.

To which he replied:

Yeah.

Mr Emery was with you?

He said:

Yeah.

And did you point that out to him?

He said:

Yeah.

And our barrister then asked him specifically:

And what did you tell him generally about the state of the deck?

To which Mr Payne replied:

There was some rotting members, timber members there, and they needed to be replaced.

KIRBY J: But that is not what caused the claim, in this case. What caused the claim was an imperfect construction by the original carpenter, and that was not visible without a very thorough inspection, probably taking the deck apart.

MR FOOT: Your Honour, a person appointed to inspect that deck, with the aid of a ladder, could have discovered everything about it. It was a substandard structure, 8 metres long, 3 metres wide; had no roof; it consisted of four poles on the outer extremity, described by Mr Emery as "telegraph poles" There was a bearer bolted to the side of the rear wall of the house and between those two bearers was slung 16 floor joists. Now, your Honour, there was nothing about that deck that would not have been very discernible to any person, who got up on a ladder, checked the structure of the deck for rot and checked the depth of the rebates. Now, a knowledgeable person, your Honour, once Mr Emery had been put on notice that there was defects in his structure, would have very easily ascertained these things.

Your Honour, I turn - to reinforce that point, about the dropping of the deck, the rot in the deck generally and that one joist that had crush fractured out of its rebate - to the evidence of a Mr R. M. Hughes, a consulting civil engineer, appointed by the solicitors for the Emerys - that is the defendants - to report on the deck, as an expert witness. As I have already pointed out, Mr Payne indicated that one of the joists "had dropped out of its rebate". This is accepted by the three judges of the court below. In fact they make that point that one joist had dropped one centimetre, and the deck had also dropped one centimetre. Mr Lynch said to Mr Hughes:

And the joist, for example, may drop a little in their recesses?

To which Mr Hughes replied:

I think the answer to that would have to be no, because that would imply vertical movements which, to me, would already be failure.

His Honour asked Mr Hughes then:

What do you mean by that?

And Hughes replied:

Well, if the bearers have moved vertically in relation to the bearer -

that is, the joist bearers had moved vertically in relation to the main bearer, Mr Hughes said:

then a failure has already occurred. If they become unseated, then the failure has -

and his Honour said:

Begun?

And Mr Hughes replied:

has begun. It has started, yes.

KIRBY J: Let me just understand this, Mr Foot, is your case, that the primary judge accepted that once a defect was found, even though it was not the exact defect that caused the collapse, that on notice of that, an owner of a deck which was 20 or 17 or 15 years old, ought to have taken steps to have the deck checked and that such steps and such checking would have discovered the defect that would have prevented the collapse that caused the damage here? Is that the way you present the case?

MR FOOT: Undoubtedly, your Honour, an inspection of that would have very easily discerned the problems that were causing the deck collapse.

KIRBY J: It was not the point that the carpenter, Mr Payne, actually specified, but you say it was enough to alert the owner that he needed to have an inspection and such an inspection would have found the defect that actually caused this collapse.

MR FOOT: Yes, that is correct, your Honour, but what I am saying is that the defect which the carpenter, Mr Payne, had alerted Mr Emery to, was the actual defect which caused the collapse of the deck. It was not the lateral force applied to the handrail, which the engineer of the Noosa Shire Council said. He jumped to an assumption, the morning afterwards, but he had never been informed of Mr Payne's evidence. He made that assumption that it was lateral force, but, your Honour, the real reason for that deck collapsing is set out in the evidence given by Mr Hughes, who was an engineer appointed by the other side. He goes on further to say - - -

KIRBY J: Where are you reading now?

MR FOOT: I am reading, your Honour, on page 53. Mr Lynch said:

So, if that's observed in the days prior to the actual collapse, that's an indicator of things to come, isn't it not?

This is what Mr Lynch said to the engineer, Mr Hughes. He said:

Well its just basically hanging on by its fingernails.

And Mr Lynch said:

So if that was observed, that is, one of the joists was observed to be at a lower level than what it should have been -

and this has already been established by the witness, Mr Payne, that it was at a lower level -

prior to the date of the accident, then that would put the person who observed it on notice of problems. Agreed?

And Mr Hughes said:

If there was one.

Now it has already been established that there was one, and Mr Lynch said:

Yes?

It would've been an indicator -

Mr Hughes said -

that there was a potential for failure.

And Mr Lynch, the barrister, said:

And a prudent owner would then take some alleviating action, would he not?

To which Mr Hughes replied:

Well, I can't, - I can't answer that.

Now, we have already established it was a dropping of the joists, that has been accepted in the court - - -

KIRBY J: What was the interval between the discovery by Mr Payne of the defect and the collapse?

MR FOOT: Mr Payne inspected the deck at Mr Emery's request, in the week leading up to the birthday party.

KIRBY J: So you have to assume that within a week an owner, in an Australian house of this kind and this build and in this position, having been alerted, would have to act within a week to have the whole thing inspected, so that the defect might be discovered.

MR FOOT: Yes, your Honour, for the reason he was inviting - - -

KIRBY J: It puts a lot of - - -

MR FOOT: May I just make that point, your Honour, please. He was inviting 20 or 30 people to be on that deck within the seven days of that inspection. So, that is the point, your Honour, that he may not have, if he was not having a party out there, but he was having a party with 20 or 30 people there, and that was the problem; he was putting these people at risk by the fact that he ignored the warning of Mr Payne.

KIRBY J: One of your problems from the point of view of this Court, Mr Foot, is that the issues you raise, though definitely or arguably debatable, are just issues of fact. They are not matters of any consideration of new principles of law, and we simply do not have the ability to deal with every factual dispute in this country.

MR FOOT: Well, your Honour, I would like also to turn to the point, which I think is relevant to the High Court, is the fact that the male defendant, James Eric Emery, lied in his interrogatories in order to conceal the fact that he had been alerted to the defects in the deck. Now this is shown in the primary court's judge's decision.

KIRBY J: I know that upsets you, but that is not the sort of matter that would attract our attention. We cannot deal with every case where a person is alleged to have told a lie in a court, because that is said, in most cases. People say that of their opposing witnesses.

MR FOOT: Well, your Honour, can there be justice without truth?

KIRBY J: Yes, but - - -

MR FOOT: And here, Mr Emery has - - -

KIRBY J:- - - it is a matter of finding the truth.

MR FOOT: Well, I am trying to point out the truth to the Court, your Honour, where the judge of the primary court says, "The male defendant in evidence admitted he and Mr Payne had inspected the deck". Yet, in answers to his interrogatories, which he signed on 17 November 1995, he said, "We did not undertake inspection of the supporting structures of the deck. We did not cause an inspection of the supporting structures of the deck to be undertaken". Now, if he had of answered those two questions correctly, because he admitted on three occasions in the primary court that he had caused an inspection of the deck to be carried out, and that inspection was carried out by the carpenter, Mr Payne. Your Honour, if he had admitted that that inspection had been carried out, everyone would have then been aware that he was not lying, but unfortunately, he chose to conceal the truth, which was to our detriment.

Now, if he had of been open to the court and said, "Yes, I had an inspection of the deck and the witness, Mr Payne, informed me of the defects in the deck", which, your Honour, were discoverable on inspection, very easily discoverable on inspection, why would the court then not have come to the conclusion that Mr Payne knew the deck was defective and adjudged accordingly, and this is the court below?

Your Honour, these reasons why the deck collapsed were based mainly on the decision or the report of Mr Cornish, the Noosa Shire Council's building surveyor, who inspected the deck in the morning immediately after the collapse, but Mr Cornish never had access to the evidence of Mr Payne. Now, if he had of been told that a carpenter inspected that deck in the week previous to this, and informed Mr Emery that the deck had collapsed, had come down by one centimetre, had rot generally in the bearers and the joists that needed to be replaced, and one of the joists had crushed fractured out of its rebate, your Honour, would he have come up with the same conclusion as his assumption that there was lateral force, which had pushed the rail away from the deck, because there were people standing on it? Your Honour, that deck had been in operation for 14 to 20 years, and the male defendant said, in his evidence that, "On previous occasions we had as many as 40 or 50 people on that deck". Now, your Honour, why did it choose the night of 8 January to complete its collapse, with only up to 10 to 20 people on it, when the previous occasion had 40 or 50 people on it? Your Honour, why was that not taken into consideration by the Appeal Court?

Your Honour, the evidence given by the engineer, Mr Hughes, the expert witness for the other side, clearly shows that the cause of the deck collapse. It was not lateral force applied to the rails, because of inadequate fastings, but it was the vertical force applied to the deck, which caused the deck to move vertically, because of the rot in the end grain of the joists. Your Honour, I just make this point quickly: if that deck had inadequate fastings and it took 14 to 20 years to collapse from those, I refer you to the Australian contingent walking across that bridge at the Maccabiah Games in Israel; that bridge was deemed to have inadequate fastings and the first time that bridge was put under load, it collapsed. It did not take 14 to 20 years for it to collapse; it collapsed immediately it was put under load because of the inadequate fastings. Now, if there was inadequate fastings on the deck, deemed to be the reason why the deck collapsed, why did it take 14 to 20 years to collapse? Because, your Honour, it was the rot in the deck, which had increased to the point where the deck was unsafe. I do not think that can really be debated.

I do not have time really, to go into the reasons why James Eric Emery lied in his interrogatories, but it is very obvious from the evidence that he did lie, and he did lie to conceal the fact that he had been warned of the structure of the deck. Now, in Northern Sandblasting, your Honour, it says that, "occupiers are liable to inspect the premises for defects". That is as per the ruling of the then Chief Justice Brennan and Justice Gaudron, and it is number 3 on the Northern Sandblasting Case.

GLEESON CJ: Thank you, Mr Foot. Just before we hear what Mr Fleming has got to say, can I ask you one other question. The respondent has submitted that if this application is refused, you should pay the respondents' costs of the application. Do you have anything to say about that?

MR FOOT: Yes I do, your Honour. Your Honour, all the costs in this matter, right from the primary court right throughout to the present court, will be met by another party. The respondent has an arrangement with another party that they will meet all his costs for fighting or settling their legal costs. Your Honour, for me to pay something to the Emerys, would be giving them a bonus to which they are not entitled, which I think is set out in English law.

GLEESON CJ: Thank you. Yes, Mr Fleming.

MR FLEMING: If the Court pleases. If I may address a couple of the issues directly. In respect of the issue of the credibility of Mr Emery, that was in fact resolved against him and the learned judge accepted the evidence of Mr Payne, who was the carpenter, rather than the evidence of Mr Emery, in any event, so that issue is not alive.

KIRBY J: It seems a hard case to have reversed the decision of the primary judge, where you had a witness, Mr Payne, who was believed, who said that a week before the collapse he, by chance, or he had looked at this and seen a defect, brought it to the attention of the home-owner and said, by inference, that something should be done, and then within a week, you invite 20 people onto the deck and it collapses, and then the Court of Appeal takes the verdict away. On the face of things, that seems a hard - I mean, in many cases, in most cases, you would know, plaintiffs do not have a witness like Mr Payne; they just have a general complaint that the home-owner should have done something about the deck, but here there was somebody who drew it to your client's notice.

MR FLEMING: Your Honours, what he brought to the notice was not as Mr Foot has presented to this Court, that one of the joists had removed itself from the housing, but rather, one of the joists had dropped by 10 millimetres, there still being 110 millimetres of good timber in that joist. He gave that in evidence subsequently, because he cut the timber up after the deck collapsed and removed it. He also said in evidence that there was no danger of the deck collapsing from the defect that he observed. So, in those circumstances, there is not an obligation on a home-owner to then inspect, because there was no danger.

KIRBY J: Did Mr Payne say that that was what he told your client, that there was no danger that the deck would collapse?

MR FLEMING: No, he told him nothing.

KIRBY J: He just drew his attention to the defect.

MR FLEMING: What Mr Payne was there for was to see whether or not there could be an extension of the deck and Mr Payne said, in effect, "You are going to have to remove all of these timbers, because you want to go out beyond where the posts already are, so you are going to have to get different timbers, in any event". And then he pointed to one part of the deck, which had one lot of rot in it, which had caused the joist to fall, just by 10 millimetres, but it was still housed and there was nothing to suggest that it was unsafe and, indeed, that is one of the points that their Honours seized on in the Court of Appeal. There was no evidence, at that point, to say that it was unsafe and, indeed, to take it one step further, what the learned trial judge then did was to say that, "If you are informed that there was a problem, albeit, not an unsafe one, nevertheless, you should dismantle the deck or inspect it in such a way that the other defect would be revealed".

Now, there was no evidence at all that if there had been any sort of inspection that the other defect would have been revealed, because the deck was fully constructed, the joists were housed and the flooring was on top and the problem was that the joists were end-nailed into the housing and pulled away when there was an excessive force put on the railing, and the railing was constructed to the outside structure of the deck and so it then opened like a trapdoor.

One of the things that Mr Foot said was that the collapse was caused by the rot. There is no evidence of that, whatsoever, anywhere. The collapse was caused because the joists were inadequately fastened to the bearer and as a number of people leaned against the railing, the joists came out of their housing. Now, your Honours, it was all fact. There are no issues of law whatsoever involved in this case, and there was no evidence upon which the learned trial judge could make his original finding and we submit that the Court of Appeal is undoubtedly correct, for the reasons that they set out. They are our submissions.

GLEESON CJ: Thank you. Yes, Mr Foot.

MR FOOT: Your Honour, Mr Fleming referred to "The joist was inadequate and pulled away". "The joist pulled away after a number of people had leaned against it". Your Honour, evidence can be presented to any future hearing or can be supported today, as to show that there was only two people taken to the Nambour Hospital that night. They were transported by the Queensland Ambulance Service. That report shows that there was only two people, and the judge refers in his evidence as to who they are, my wife and myself. Mr Fleming has said if a number of people leant against that rail, this was sufficient to force that rail out to allow the trapdoor effect to occur, which is that deck collapsing downwards. Your Honour, a number of people applying lateral force to four telegraph poles to move them off 16 joists, would you say, 10 people, 12, 15; let us say 10? Your Honour, I ask the Court, what happened to those 10 people when this trap-door fell below them?

I refer to the Short v Barrett Case. Mr Barrett died after falling off that deck. No one else was seriously injured that evening. So that effect that they talk of, that the lateral force moved the railing away, just never occurred, otherwise we would have had 10, 12 people taken to hospital. What happened, and this is borne out in evidence - my evidence and also the male defendant's evidence - is the deck unzipped from the right-hand corner to the left. Where I was standing and my wife was seated, the deck commenced to part from that structure. Now all the force that caused the accident was applied at that point. When that deck came down at that point, I was catapulted into the corner post and my wife was catapulted further down the slope. That deck continued on unzipping up to the other end. That was why there was no one else seriously injured, because the people just slid down from there. There was no force to catapult them. The force had been expired at that point. The rest of the guests on the deck just slid down the deck.

So, your Honour, clearly it shows that the reason that is inferred that the deck collapsed because a lateral force was applied to the railing, just cannot be sustained on that evidence. The evidence of Mr Hughes, the engineer appointed by the other side, clearly states, and it is stated by Mr Payne also, that it had crush-fractured out. He said in his evidence that "The joist had crush-fractured out of the rebate because of the rot". Mr Fleming said there was 110 millimetres of good timber. Your Honour, that joist that he was referring to was 150 millimetres of timber, a six inch joist, and he says there was still 110 millimetres of good timber. That means, your Honour, that 25 per cent of that joist was rotten. Now there is the evidence that the deck collapsed because of rot in the joists.

KIRBY J: Yes, all of this is fact, you see; this is bearing out the last statement by counsel, that this is a case about facts, and the Court just does not have the capacity to deal with every factual dispute.

MR FOOT: Well, your Honour, that is fact, that those joists were 150 millimetre in mass and the carpenter said there was only 110 millimetres of decent timber left, so 25 per cent of that mass was rotten. That was at the end grain, which caused the joists to crush-fracture out of their rebates, and that is why the joists went down first, from the right-hand corner, not the whole thing going out in a chaotic trapdoor effect. There was no chaotic trapdoor effect. It went down from the right-hand corner and, as Mr Emery said, it just "unzippered". He is the defendant. He agreed also, it just unzippered, and it unzippered from the right-hand corner, and we know how a zipper works; it opens up all the way along. The lateral force that was supposedly applied to the hand rail; it just never occurred.

Your Honour, I would also make the point that Mr Payne did not look at that deck by chance. He was commissioned by Mr Emery, the owner of the property, to inspect the deck, and that is borne out in evidence given by - - -

KIRBY J: Yes, that is quite right, and I have been reminded by counsel that his inspection was for the purpose of seeing whether they could extend the deck. The Emerys got him along for that purpose.

MR FOOT: That is correct and, your Honour, in his sworn interrogatories, Mr Emery denied that he had commissioned Mr Payne to inspect the deck. Now, if he had of said, "Yes, I commissioned mr Payne to inspect the deck", and, as Mr Emery said in evidence, "Mr Payne told me the deck was sound, I could extend it, there was no rot whatsoever, and, as for inferring that the joists had dropped, he never told me that". That is what Mr Emery said in evidence, yet the three judges of the court below all accepted that Mr Payne had inspected the deck and told Mr Emery about those points.

GLEESON CJ: Thank you, Mr Foot.

In this matter the decision of the Court of Appeal turned upon the application of well-settled principles of law to the facts and circumstances of the case. The submissions made by Mr Foot indicate that the issues that he would wish to agitate if he were given leave to appeal are substantially issues of fact. The Court is of the opinion that the case is not a proper one for the grant of special leave to appeal to this Court and the application is refused. The applicant must pay the respondent's costs of the application.

AT 11.44 AM THE MATTER WAS CONCLUDED