For Property Owners, their Agents and Solicitors

Substantial damages awards in a number of recent court cases in Australia highlight the risk to property owners, and by implication, their Agents and advisors, of incorrectly glazed windows and doors that do not meet current safety standards.

The Jones Case

In a case heard in Western Australia recently, plaintiff Marc Jones was injured when he walked into a full length glass door and glass dropped onto his right leg. The house was built in the late 1950's or early 1960's before the first glass safety standards were introduced in 1973.
The annealed glass door in the accident was 4mm thick. In comparison, at the time of the accident in 1993, the Australian Standard required grade A laminated or toughened safety glass to be installed.

The Judgement:
In his Judgement on 4 February 1998 in the Western Australian District Civil Court, Commissioner Reynolds found that the defendants (the joint owners of the house which was being rented) "were negligent by failing to have the premises adequately inspected for safety prior to allowing the plaintiff's parents into possession. The consequences of the plaintiff's contact with the glass door were greatly exacerbated by the failure of the defendants to install glass which complied with safety standards at the time."

He also found that the defendants breached the care required to be shown by them to the plaintiff pursuant to the Occupier's Liability Act.

The Consequences:
The strong emphasis on 'duty of care' responsibility is being applied to housing as well as commercial/public buildings and the current Australian Standard is being used to help define that responsibility. Building owners and operators can no longer afford to ignore sub-standard glazing in any of their buildings, irrespective of type or date of construction.

Irvine's Case
Irvine was a student at the preparatory school of Wesley College in Perth. During a recess, groups of boys played handball in an area outside the "quiet room" which contained a window of standard glass

Whilst playing, Irvine tripped and fell towards the window holding out his arms to protect himself. He went through the window cutting the underside of each of his arms.

The Judgement:
The judge decided that in the circumstances the injury was foreseeable and that the school had failed to exercise reasonable care for the safety of the children under its care and control. He found that the defendant school was negligent in failing to ensure that after the Australian Standard was upgraded in 1979 (two years after the construction of the building in question) safety glass was installed in the window. Damages of $30,584 were awarded.

The Cardone Case

Enzo Cardone, a Year 11 student at St Edmunds College in Canberra was "almost running" as he approached the double doors of the school cafeteria. He caught his foot on a boot scraping bracket and fell. As he fell, his right hand and forearm struck and shattered a glass panel in the door, causing him severe lacerations. Cardone underwent surgery for his injuries on a number of occasions but failed to recover fully. He now suffers a permanent loss of function in his right hand and ongoing pain and discomfort.

Justice Higgins found that the school had been negligent by failing to replace the plate glass in the cafeteria door after the introduction in 1972 of an Australian Standard that required significantly stronger safety glass to be fitted in such doors.

The finding is particularly significant for building owners and occupiers, and their insurers, because it was made notwithstanding the fact that the ACT Building Code, which imposed a statutory obligation to comply with the Standard, only required buildings to comply with the standards applicable at the time of construction. The plate glass used in the cafeteria doors had complied with the applicable standard at the time it was installed.

The Judgement:
Justice Higgins said that it was both "practicable and affordable" for the school to replace the glass after the Australian Standard came into existence, and failure to do so in the circumstances was negligent.

The Appeal:
The Federal Court dismissed the appeal and increased the award of damages to Cardone by $20,000 to $260,000. (The Federal Court's decision is reported in (1995 - 130ALR 345).

The Conclusion:
The need to be aware of changes in Australian Standards and possibly to change materials in order to comply with new standards, places a heavy onus on building owners and occupiers.

As a result of this case, building owners and occupiers will need to keep up to date with changes to Australian Standards, and particularly AS 1288 - Glass in Buildings. Failure to change the materials to comply with the new standards may result in a breach of duty of care