Capital Weed Control Pty Limited v Australian Capital Territory
[2014] ACTCA 8
•10 April 2014
CAPITAL WEED CONTROL PTY LIMITED v AUSTRALIAN CAPITAL TERRITORY
[2014] ACTCA 8 (10 April 2014)
TORTS – NEGLIGENCE – Duty of Care – Claim against employer – Claim by employer against third party for contribution as vicariously liable for negligence of its employee – Whether employee of third party owed duty of care to plaintiff – No duty of care established – Claim for contribution dismissed
Civil Law (Wrongs) Act 2002 (ACT), ss 21, 42
Compensation and Relatives Act 1897 (NSW)
Brennan v Capital Weed Control Pty Limited and Anor [2013] ACTSC 78
Meredith v Commonwealth [2013] ACTSC 221
Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556
Timbs v Shoalhaven City Council (2004) 132 LGERA 397
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 27 of 2013
No. SC 512 of 2009
Judges: Refshauge, Burns and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 10 April 2014
IN THE SUPREME COURT OF THE )
) No. ACTCA 27 of 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SC 512 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CAPITAL WEED CONTROL PTY LIMITED (ACN 107 759 688)
Appellant
AND:AUSTRALIAN CAPITAL TERRITORY
Respondent
ORDER
Judges: Refshauge, Burns and Cowdroy JJ
Date: 5 November 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The Appellant pay the costs of the Respondent.
IN THE SUPREME COURT OF THE )
) No. ACTCA 27 of 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SC 512 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CAPITAL WEED CONTROL PTY LIMITED (ACN 107 759 688)
Appellant
AND:AUSTRALIAN CAPITAL TERRITORY
Respondent
Judges: Refshauge, Burns and Cowdroy JJ
Date: 10 April 2014
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
The Appellant appeals from the decision of Master Harper in Brennan v Capital Weed Control Pty Limited and Anor [2013] ACTSC 78. In the proceeding giving rise to this appeal, a claim for damages for personal injuries brought against Capital Weed Control Pty Limited (“CWC”) in negligence was settled, leaving a claim for contribution by CWC against the Australian Capital Territory (“the Territory”). The Master in the Supreme Court dismissed the third party claim and CWC was ordered to pay the Territory’s costs.
On 5 November 2013, this Court made orders dismissing the appeal with costs. We now provide the reasons for our decision.
FACTS
By way of a project brief and contract made on 5 February 2008 between CWC and the Territory entitled Ginninderra Creek Catchment Capital Weed Control (“the Contract”), CWC was contracted to perform spraying of undergrowth on six sites in and around Canberra, namely Gungahlin Pond, Halls Creek, Percival Hill, Palmerville Heritage Park and Naval Radio Stations East and West. It is the Palmerville Heritage Park site (“the work site”) between the suburbs of McKellar and Nicholls that is relevant to this appeal.
Ms Jenny Conolly was employed at the relevant time as a “Pest and Weeds Officer – Parks, Conservation and Lands” of the ACT Department of Territory and Municipal Services (as it was then known). She was nominated in the Contract as the Field Supervisor and also as the Contract Manager. Clause 12(e) of the Contract provided that CWC and Ms Conolly “must sign off on the Risk Management Plan before commencement of the works”. Such plan was prepared and signed, and work under the Contract commenced.
In carrying out the spraying work, an employee of CWC, Gerald Brennan, sustained severe injuries as a result of which he sued for damages. His injuries arose in the following way. On 20 May 2008 Mr Brennan was a member of a team engaged in weed control beside the Ginninderra Creek at the work site. On that day it was observed that several poplar trees in the vicinity of the area where spraying was to take place had been vandalised with a tomahawk or similar item. Mr Graeme Watters, the foreman of CWC, being concerned for the safety of his workmen, reported the incident to Mr Gregory Harris, a director of CWC. Mr Harris gave instructions to leave the area and move to another area along the creek line.
Mr Harris informed Mr Watters that he would telephone Ms Conolly, and claims he did so. The parties disputed, however, whether any telephone call was in fact made as claimed. On the balance of probabilities and weighing up the evidence, the Master found that a telephone call had been made to Ms Conolly by Mr Watters in which she was informed of the state of the vandalised trees. According to Mr Harris, whose evidence was also disputed, Ms Conolly said she would inspect the area. The Master found that Ms Conolly visited the work site either on 20 or 21 May 2008, inspected the damaged trees, and declared the area safe for the work to continue. At approximately 8:15 am on that day however, a poplar tree of substantial dimensions, being approximately fifteen metres in height and approximately eight hundred to nine hundred millimetres in circumference, fell without warning on Mr Brennan, causing his injuries.
The Master referred to Mr Watters’ evidence that “so far as her division, Parks, Conservation and Lands, was concerned, there was no impediment to the work proceeding”. However, the Master found that there was no evidence of anything said or otherwise conveyed to Ms Conolly that “she was aware that she was in any way taking responsibility for the safety of the defendant’s employees on the site”.
The Master was not satisfied that CWC had established that a duty of care arose between Ms Conolly and CWC, stating at [39]:
It was not made clear to her by Mr Watters that the defendant [CWC] was relying on her decision as to whether it was safe for its employees to resume work in the area of the plaintiff’s [Mr Brennan’s] injury.
The Master found that, under s 42 of the Civil Law (Wrongs) Act 2002 (ACT), a reasonable person in the position of Ms Conolly would have done no more than she did in relation to the risk of injury to Mr Brennan. The Master also concluded that Ms Conolly was not a person who was also liable for the same damage as that caused to Mr Brennan by the admitted negligence of CWC within s 21 of the same Act. Accordingly, CWC’s claim in negligence against the Territory was dismissed with costs.
SUBMISSIONS
CWC’s arguments on appeal may be summarised briefly. It submits contrary to the Master’s findings that it was owed a duty of care by the Territory due to Ms Conolly’s statement that it was safe to work at the work site. CWC relies on the circumstances in which such statement was made, namely that Ms Conolly was asked to inspect the work site in her capacity as Field Supervisor and Contract Manager; that Ms Conolly had a background in horticulture; and most importantly, that Ms Conolly assumed the responsibility for advising as to the safety of the vandalised trees by the making of the statement. CWC refers to cases in which a duty of care was found to arise from the making of a representation, in particular the decision of the High Court of Australia in Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 (“MLC v Evatt”), and the decision of the New South Wales Court of Appeal in Timbs v Shoalhaven City Council (2004) 132 LGERA 397 (“Timbs”). CWC also submits that it was reasonable for Mr Watters to rely on the advice provided by Ms Conolly.
The Territory filed a Notice of Contention in relation to the findings of fact made by the Master. In particular, the Territory submits that the Master should not have found on the evidence first that Ms Conolly had attended the work site on the morning of the accident, and second that she offered the advice that it was safe for work to continue at the work site.
CONSIDERATION
As noted above, the appeal has been dismissed. In coming to this conclusion, it has not been necessary to consider the notice of contention filed by the Territory. Accordingly, the reasons hereunder are based on the assumption that Ms Conolly did attend the work site and did provide the advice as alleged by CWC. Further, for present purposes it may also be assumed that a duty of care did indeed arise between the Territory and CWC resulting from the enquiry made by CWC of Ms Conolly and her resultant advice. The evidence adduced in the Supreme Court by CWC, however, was not sufficient to show that the duty of care was breached by reason of the provision of the advice.
It was a critical aspect of CWC’s claim that Ms Conolly had, in providing an opinion that it was safe to continue work despite the vandalised trees, represented a capacity to do so based on her expertise and experience. But in the Supreme Court, CWC failed to adduce evidence to show that a qualified tree inspector, or arborist, having inspected the vandalised trees would have given different advice to that provided by Ms Conolly. It appears to have been merely assumed by CWC that because a vandalised tree fell, it so fell because it was vandalised. This conclusion does not necessarily follow: the event was not of the nature of a res ipsa loquitur. There are a number of other factors that may have affected the stability of the fallen tree.
Even if the tree fell because it was vandalised and Ms Conolly’s advice was incorrect, CWC would still need to show that Ms Conolly had not exercised reasonable care in the circumstances. As was stated by Barwick CJ, in MLC v Evatt at 573, a speaker of a representation “is not in breach merely because his [or her] communicated information is incorrect or his [or her] proffered advice erroneous”. The evidence in the Supreme Court was non-existent in this regard.
These circumstances are in stark contrast to those that existed in Timbs, a decision upon which CWC places heavy reliance in this appeal. In Timbs, the New South Wales Court of Appeal considered in part whether the respondent council was liable for damages pursuant to the Compensation and Relatives Act 1897 (NSW) arising out of the death of Mrs Timbs’ husband. Mrs Timbs and her late husband wished to remove four trees on the western side of their residential property for fear that if any of those trees were blown over, they would fall onto their house. The trees were subject to a Tree Preservation Order, pursuant to which they could only be removed lawfully with permission of the local council. At the request of either Mrs Timbs or Mr Timbs, a council officer attended the property on two occasions and advised that the four trees were safe and could not be removed. On the second occasion, Mr Timbs intimated to the council officer that, regardless of council approval, he would remove the trees. The council officer informed Mr Timbs that he would be fined $2000 per tree if he did so. The four trees were not removed. Some months later, a tree that Mr Timbs had sought to remove fell onto his house in strong winds, resulting in his death.
Critically, expert evidence was led in Timbs which proved that the tree fell due to water-logged soil and a decayed root system in combination with high velocity winds. Sheller JA, with whom Mason P and Hodgson JA agreed, found, at [57], that such defects with the tree would have been identified by a reasonably informed inspection, and that the council inspector was negligent in his assessment that the trees he inspected were safe.
This is sufficient for the appeal to be dismissed. For completeness however, we will briefly consider whether a duty of care arose.
There are three essential requirements for a duty of care to arise in circumstances where one party has purported to rely on the representations of another (MLC v Evatt at 571):
1. First:
the circumstances must be such as to have caused the speaker or be calculated to cause a reasonable person in the position of the speaker to realise that he is being trusted by the recipient of the information or advice to give information which the recipient believes the speaker to possess or to which the recipient believes the speaker to have access or to give advice, about a matter upon or in respect of which the recipient believes the speaker to possess a capacity or opportunity for judgment, in either case the subject matter of the information or advice being of a serious or business nature.
2. Secondly:
the speaker must realise or the circumstances must be such that he ought to have realised that the recipient intends to act upon the information or advice in respect of his property or himself in connection with some matter of business or serious consequence.
3. Thirdly:
the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker.
See also Meredith v Commonwealth [2013] ACTSC 221 at [385]-[390] and the cases there cited.
The critical paragraphs in the Master’s decision regarding the alleged duty of care are [37] and [39]:
37.I think that more probably than not Mr Watters telephoned Ms Conolly and told her about the damage to the trees. I am satisfied on the balance of probabilities that she attended the site, either on 20 or 21 May, and conducted something in the nature of an informal inspection with Mr Watters. I am satisfied that she came to the view, and expressed the view to Mr Watters, that the site seemed to be safe for work to proceed. I cannot be sure that she was aware that Mr Harris and Mr Watters were in effect putting in her hands the decision as to whether or not work should proceed. I cannot be sure that she was doing any more than telling Mr Watters that so far as her division, Parks, Conservation and Lands, was concerned, there was no impediment to the work proceeding. I am not satisfied that as a result of anything said or otherwise conveyed to her, she was aware that she was in any way taking responsibility for the safety of the defendant’s employees on the site.
...
39.On the facts as I have found them, it does not seem to me that a duty of care arose between Ms Conolly and the plaintiff. It was not made clear to her by Mr Watters that the defendant was relying on her decision as to whether it was safe for its employees to resume work in the area of the plaintiff’s injury. She was a relatively junior ACT Public Servant. Her responsibility was to manage the contract with the defendant and to make sure that the defendant carried out the work it had contracted to do. I am not satisfied that this placed Ms Conolly in a position where she had a duty of care to take precautions to avoid the risk of injury to the plaintiff which eventuated.
It appears inescapable on the facts as found by the Master that CWC did rely on the advice provided by Ms Connolly. Ms Conolly attended the site because she was administering the Contract on behalf of the Respondent. She was nominated in the Contract between the Territory and CWC as the ‘Field Supervisor’ as well as being the Contract Manager, and she was intimately involved in the preparation of the Risk Management Plan. The fact that work ceased when the vandalised trees were discovered, pending her visit and instruction to proceed, points in our opinion to the fact that Mr Watters was seeking the advice to proceed, and that work would only recommence if Ms Conolly considered it safe to do so.
Despite this, however, the first criterion was unfulfilled. It requires proof that the person giving the advice must realise that the recipient is relying upon the first person for that advice. The Master found that Ms Conolly was never made aware of this fact. His Honour came to this conclusion taking into account the evidence that Ms Conolly was a “relatively junior ACT Public Servant”.
Barwick CJ said, in MLC v Evatt at 571
I should think that in general this element will arise out of an unequal position of the parties which the recipient reasonably believes to exist. The recipient will believe that the speaker has superior information, either in hand or at hand with respect to the subject matter or that the speaker has greater capacity or opportunity for judgment than the recipient.
The evidence does not support the proposition that Ms Conolly was made aware that she was being trusted by Mr Watters for information, other than in the most general terms. The evidence does not support the conclusion that Mr Watters reasonably believed Ms Conolly possessed the requisite experience or expertise, or indeed “superior information”, to provide the advice that the vandalised tree would not fall. It follows that the first requirement set out in MLC v Evatt has not been met, and a duty of care did not arise between the Territory and CWC.
These are the reasons for the dismissal of the appeal on 5 November 2013.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 10 April 2014
Counsel for the Appellant: Mr G Stretton SC
Solicitor for the Appellant: King and Wood Mallesons
Counsel for the Respondent: Mr B Meagher SC
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 5 November 2013
Date of judgment: 10 April 2014
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