Respondent and Kralc Wholesale Pty Ltd

Question: Discuss about the Respondent and Kralc Wholesale Pty Ltd. Answer: The parties involved in this case were Andrew Baker, who was the appellant in this case. On the other hand, Karen Gilbert was the first respondent and Kralc Wholesale Pty Ltd was the second respondent. In the same way, the third respondent in this case was Nylex Industrial Product Pty Ltd. The issue that had to be decided in this case can be briefly describe that Karen Gilbert had suffered serious injuries when she was present on Andrew Baker's premises. In this regard, Garling DCJ (District Court's Judicial Officer) arrived at the conclusion that negligence has been shown by the appellant while inspecting and maintaining the ladder. On the other hand, an appeal was presented by Andrew Baker on the ground that it has been wrongfully held that there was a breach of duty on his part towards Karen Gilbert. The remedy that was sought in this case was of damages. The brief facts of this case are that Mrs. Gilbert suffered serious injuries when she had landed awkwardly after she jumped off an unstable footplate that was attached to a ladder in the pool on the premises of the appellant. She had to jump in order to avoid falling off. The latter had become unstable because the bolts in the foot plate had become loose and as a result, the ladder was not secured against the pool. Therefore in this case it was claimed by the appellant, Baker that he had not visited or used the pool as it was some distance away from his residence and moreover, he was not aware of these defects. Under the circumstances, the issue that had to be decided by the court was if a householder, who is not aware of the presence of any defect to his property (in this case, the ladder at the swimming pool) that might result in causing danger to lawful visitors but is aware of the circumstances that may have alerted any other reasonable person under the circumstances regarding the danger from such a defect, may have ignored the presence of the defect. Therefore, it was stated by the court that the basic test for liability that had to be used in order to deal with the issue is to see if any other reasonable person would have done while responding to the foreseeable risk caused under the circumstances. Therefore if any other reasonable person would have undertaken an inspection, if such person was in the position of the householder, and in case of the failure to do so, it can be said that there was negligence on the part of the defendant. The relevant rule of law that had to be applied in this case was the rule of the common law which governs the duty on the part of an occupier towards various classes of persons, who may enter the property of the occupier, is present in the form of the law of negligence. In this case, the NSW Court of Appeal arrived at the conclusion that the appellant was negligent and therefore liable and had a duty of care towards the other party. At the same time, the NSW Court of Appeal also discarded these artificial distinctions and assimilated the liability of the occupiers in the tort of negligence. In this case, it was held by Garling DCJ that the footplate was very unstable. He also mentioned that the ladder and the footplate should have been inspected by Mr. Baker. As a result, he stated that the duty of care has been breached by Mr. Baker. In support of this finding, the court mentioned several similar cases that were related with the basic test for liability, including Hackshaw v Shaw (1984) and Australian Safeway Stores Pty Ltd v Zaluzna (1986). The court also pointed out towards the fact that any other reasonable person in a similar position would have inspected the ladder and the footplate carefully. Under these circumstances, the court arrived at the conclusion that the judge had not upheld the ground of appeal made by the appellant. Hence, Mr. Baker was held liable for the breach of duty of care towards Ms. Gilbert. The NSW Court of Appeal stated that under the circumstances, Mr. Baker was liable. The reason given in support of this decision was that any reasonable occupier would have inspected and maintain the ladder as it was a potentially dangerous structure. In this case, Ms. Gilbert was swimming in the pool of Mr. Baker with his permission. After she had swam for some time, she decided to get out of the pool. For doing this, first of all she climbed up the ladder which went from the pool to the footplate at the top of the coaming. She had done so with her face towards the wall of the pool. When she had reached the foot plate, she decided to turn around so she can get down by again facing the wall of the pool. Ms Gilbert weighed around 122 kgs. Therefore it was not very easy for her to turn on the foot plate as it was a very small area. But she took several small steps and tried to maneuver herself around. But she claimed that the play became "wobbly". Ms. Gilbert started to fall out words and therefore she jumped. Although she landed on her feet but she suffered serious injuries. Under these circumstances, it was alleged by Ms. Gilbert claimed on different grounds that in this case, Mr. Baker had been negligent. Mainly in this regard, s he asserted that Mr. Baker had failed to inspect and maintain the ladder in a proper way. The claim of Ms. Gilbert was upheld by Garling DCJ and damages were awarded to her. However, an appeal was referred by Mr. Baker on the ground that it had been wrongly held by Garling DCJ that there was a breach of duty of care on part of Mr. Baker that he owed towards Ms. Gilbert. Although there were a number of grounds of appeal but mainly these grounds fall into two categories. The first is that an error has been committed by Garling DCJ when he arrived at the conclusion that the foot plate was unstable to a significant level and the instability was the result of inadequate tightening of the bolts. Another ground of appeal was that an error was committed by Garling DCJ in arriving at the conclusion that in discharging his duties of care, it was required that the ladder and the foot plate should have been inspected and maintained by Mr. Baker. Mr. Ferrier who was the solicitor of Ms. Gilbert had inspected the ladder and the foot plate. It is oral evidence, Mr. Ferrier had claimed that the footplate was unstable and when he stood on it, it rocked. On the other hand, the senior counsel for Mr. Baker, Mr. Donaldson argued that when Ms. Gilbert went into the pool, she did not experience any instability on the foot plate. As a result, he claimed that there were reasons to doubt Ms. Gilbert's testimony regarding the footplate being unstable when she was coming out of the pool. However, the court noted the fact that the instability of the footplate increased, depending on the place where the person stood on the footplate. Therefore the greater the distance from the center, the more unstable it was. Therefore the court stated that it was possible that while entering into the pool, Ms. Gilbert's position was different from the position in which she was when she left the pool. Moreover, the court also noted the fact that the appella nt had not explored this issue during the cross-examination of Ms. Gilbert. She was not asked if she can explain why there was no instability when Ms. Gilbert was entering the pool. Under these circumstances, the court stated that not much weight can be attached to this argument of the appellant. Another argument made by Mr. Donaldson was that the evidence did not support the finding that the nuts of the foot plate were not tightened up to the coaming. On the other hand, in his testimony, Mr. Ferrier had claimed that the footplate was attached by using two light bolts that appeared to be loose. Moreover, during his cross-examination, he said that he wanted to correct himself and claimed that the bolts were loose. For this purpose, he explained that the boards were in a position where he fed them with his fingers but there was more length of bolt then there were things to hold the bolts in position. In this way, it claimed that the bolts were longer than they should have been. Mr. Ferrier also claimed that the bolt was okay but it was just not tightened up and as a result, the footplate rocked. he also took photographs of it. During the cross-examination of Mr. Ferrier, it was asked if the conclusion that the bolt was loose had been drawn from the fact that the footplate was u nstable and in his reply, he said that it could have been seen by anyone. Another argument forwarded by Mr. Donaldson on behalf of Mr. Baker was that Garling DCJ had failed to take into account the evidence regarding the presence of a washer between the nut and the coaming. Therefore, it was argued on behalf of Mr. Baker that the testimony of Mr. Ferrier according to which, there was more length of bolt than required, needs to be discounted due to the reason that he had felt the washer and not the board itself. However, it was expressly stated by Mr. Ferrier that he had felt the bolt with his fingers. Moreover the court also noted the fact that during the cross-examination, it was not put to Mr. Ferrier that he had not felt the bolt but be washer. As a result, the court was of the opinion that this submission needs to be rejected. The second ground of appeal according to which, Garling DCJ had erred in arriving at the conclusion that a discharge of his duty of care as the one of the premises, it was required that Mr. Baker should have inspected or maintained the ladder as well as the footplate. Under the circumstances, Mr. Donaldson argued on behalf of Mr. Baker that the lower court had failed to apply the decision given in Short v Barrett (1990). In this case, the plaintiff had visited the house of his friend and he fell of from a timber deck balcony and suffered injuries as a plank on the side of the balcony gave way. Therefore it was held in this case that there was nothing to suggest any defect in the balcony to the defendant occupier. However, while dealing with this argument, the Court of Appeal stated that the observations that were made in Short v Barrett were only guidelines that can be applied by deciding the issue what would have been done by a reasonable person under particular circumstances, in response to the foreseeable risk. The court stated that for this purpose the basic test of liability that has been provided in Hackshaw v Shaw needs to be applied. By reciting the appeal, the court also pointed out towards the fact that in Short v Barrett, before arriving at the conclusion that there was no negligence by the occupier, the court had meticulously demonstrated that the balcony from which the plaintiff had fallen off, did not show any obvious signs of weathering or cracking. In this way, there was nothing to suggest that the use of balcony can be unsafe. In this way, it can be said that in this case, the defendant had not received any warning that the use of balcony may be unsafe. Such a warning need no t be express. It can also be implied under the circumstances, for instance, by the patent signs of danger. In this way, all the arguments made by the applicant were rejected by the Court of Appeal. References: Baker v Gilbert 2 Ors [2003] NSWCA 113