Cleland v Weetra - [2013] SADC 52

District Court of South Australia
(Civil)
CLELAND v WEETRA
[2013] SADC 52
Ruling of His Honour Judge Slattery (ex tempore)
19 April 2013
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - ACCORD AND SATISFACTION
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE
Plaintiff claims against the defendant for breach of contract and breach of duty for failure to properly treat the plaintiff’s home for white ant infestation. Defendant, a pest control operator, who attended the plaintiff’s home in that capacity in 1999, 2001 and 2005 in response to requests by the plaintiff. The defendant provided services as a pest control operator to treat a white ant infestation in 1999 and in 2005.
After the 2005 visit the defendant failed to inform the plaintiff that he refused to provide pest control services because of an issue that he perceived about liability for the occurrence of and the treatment of an infestation of white ants that he identified in the 2005 visit.
After the 2005 visit the defendant refused to re-attend the plaintiff’s premises despite requests from the plaintiff, failed to inform the plaintiff of the reason for refusal to re-attend, failed to inform the plaintiff of the necessity to further treat the plaintiff’s home for the white ant infestation and having created a belief in the plaintiff that he would return to do the work failed to disabuse the plaintiff of his belief.
The plaintiff identified a further substantial white ant infestation in 2007 and this was treated by another pest control operator and after which the plaintiff was required to undertake repairs of his home as a consequence of the damage caused by the white ant infestation.
Whether the defendant was in breach of contract or in breach of duty owed to the plaintiff as a pest control operator; whether the actions of the defendant were a cause of the loss and damage of the home as claimed by the plaintiff; whether the Court is in the circumstances in a position to undertake an assessment of damages; whether a deed of settlement between the parties operated as a merger of any dominant or secondary interest of the plaintiff and the defendant or operated as an accord executory or accord and satisfaction as between the plaintiff and the defendant.
Held: by virtue of the actions of the defendant in 2005 following the identification of the white ant infestation, the defendant was in breach of his retainer with the plaintiff as a pest control operator and was in breach of the duty that he owed to the plaintiff in that capacity.
The deed of settlement did not operate as a merger of the claims of the plaintiff and properly construed was an accord executory and not an accord and satisfaction.
Damages:
The defendant was not a cause of all of the damage sustained by the plaintiff to his home and which was the subject of the plaintiff’s claim. There was no proof of any damage sustained by the plaintiff as a result of anything done by the defendant in 1999 or 2001.
Assessment of damages sustained by the plaintiff caused by the breach of duty and breach of contract by the defendant in 2005.
Civil Liability Act 1936 s4(1), s4(2), s31(1), s34(1), s40, s41; Cheshire and Fifoot’s Law of Contract, 9th Australian Edition paragraph 4.24, paragraph 23.6 , referred to.
Robinson v Harman (1848) 1 Exch 850 at 855; Wenham v Ella (1972) 127 CLR ; March v E and MH Stramare Pty Ltd (1991) 171 CLR 507 ; Blyth v Birmingham Water Works Co. (1856) 11 Exch 781 ; McDermott v Black (1940) 63 CLR 161 ; R & A Cab Co Pty Ltd v Kathleen Rutty, Edgar George Rutty, Horizon Synergy Pty Ltd and Lindsay Kotzman [2007] VSC 62, applied.

CLELAND v WEETRA
[2013] SADC 52

The plaintiff is the registered proprietor of the property at 6 Copernicus Avenue, Christie Downs, which I will hereinafter call 'the property'. The plaintiff is a self-employed mechanic and he is married to Susan Kay Cleland and they have two children.
The improvements on the property are a home which is usually described as a brick veneer home. A previously built home burnt down some time around 1993, but the evidence is not clear on the dates because the evidence put on that topic was not clear. What is known is that soon after the fire and I assume subject to a successful insurance claim, a new home has been built on the property by the plaintiff. The plaintiff used a builder called Gubbins to do that work.
The new home that was built was again a brick veneer home. It consisted of a lounge, bathroom, three bedrooms, a laundry, a kitchen, a dining area and a larger family room. The home is built on sloping land, but I do not have any sufficient details to describe the rate or direction of that slope. What I am aware of is that having regard to Exhibit P8, the slope falls towards the right-hand side of the map, that is towards where there is now a new construction on the land, namely bedroom four and the new bathroom. The slope is more severe towards the new bathroom thereby leaving an undercroft area under that bathroom.
In the heavy traffic areas of the home the floor is covered in tiles and from the photographs, Exhibit P1, those tiles appear to be polished ceramic tiles. It is common between the parties that some of those tiles are laid on a masonite base upon a concrete foundation. It is also clear from the evidence that in some parts of the house the floor is not concrete as perhaps would be expected in the usual concrete slab arrangement, but consists of timber floorboards. That is particularly so in relation to bedroom number one described in Exhibit P8 and I would assume the lounge room area and some parts of the kitchen, although the evidence did not extend that far. So it is not clear how much of the tiled floor has a masonite base.
A map of the home as it currently exists is Exhibit P8 and I will make reference to that exhibit throughout these reasons. Sometime after 1999 - and there is no evidence of precisely when because the evidence of Mr Cleland and his wife, Mrs Cleland, both of whom gave evidence, was contradictory - a fourth bedroom and a new bathroom was constructed. The work was also done by Mr Gubbins.
On the whole of the evidence before me, it can be said with certainty that in the area of the addition, namely the area around bedroom four and the new bathroom, there has been a major white ant infestation. However, as will become clear, that was not the only point of white ant infestation in the home. The plaintiff has been required to deal with a number of white ant infestations since 1999.
It is necessary to set out a chronology and some of my findings in this matter. In or about 1999 the plaintiff noticed the presence of white ants in a bedroom of the home. The robe is in bedroom one as disclosed on P8 and the white ant infestation is disclosed as being at or about point G on Exhibit P8. Following the ascertainment of the presence of the white ants the plaintiff contacted a business called Danny's Pest Control. The proprietor of that business is the defendant, Mr Danny Weetra.
The plaintiff and the defendant had been familiar with each other for some time. They occasionally went to the races together and ran into each other in their area. My understanding from the evidence is that the plaintiff and the defendant both lived in the same general area in the southern suburbs of Adelaide.
The plaintiff asked the defendant to attend his home and treat the white ant infestation. The defendant did attend the property and sprayed a form of insecticide in and under the plaintiff's house. At the end of the spraying the plaintiff alleges that the defendant said that there would be no more problems with the white ants. The defendant did not admit or deny that statement so it has not been traversed. In any event, and leaving that matter aside, the plaintiff paid the defendant some $500 or $600 for his service.
There was some issue in relation to the question of whether or not floorboards in bedroom 1, that is disclosed on Exhibit P8, were lifted at this time in 1999. The plaintiff's case is that there were floorboards there in bedroom one of Exhibit P9 and these were of a tongue and groove variety. The defendant agreed with that description. In the end because nothing turns on the matter it is not necessary for me to attempt to reconcile the two versions. It seems clear that the floor of bedroom 1 was of a timber variety. I am not able to say if those were boards were lifted at that time but this seems likely to have occurred.
Two years or so after the first defendant on a date somewhere in or about 2001 and on the evidence this date is not clear, the plaintiff says that he discovered some holes in some gyprock around his home. He says that he suspected the return of white ants. However, the plaintiff's evidence on this matter was vague and to an extent was unsatisfactory because it was not specific about time or the issue. It may be that the plaintiff’s memory is clouded by the events that came later.
The defendant admits that at some time around that period, and he could not be sure of the date, he attended the property and said that he sprayed in and around the outside of the property and the house on the property. The defendant maintains that he sprayed for black ants but that he told the plaintiff that the spray that he was using kills white ants as well. The defendant was quite certain of his memory on that topic.
On the evidence I am unable to reconcile the position as to the specific purpose why the defendant attended the premises on the second occasion. It is slightly peculiar that the defendant might inform that the spray that he was using would kill white ants as well if that was not a concern of the plaintiff at the time that the defendant attended on the second occasion. On balance I accept the plaintiff's case that the defendant attended on the second occasion but I am unable to place great weight upon either the plaintiff's case or the defendant's case in relation to the purpose for the defendant attending at that time. The plaintiff may well have seen something which might have indicated a recurrence of the white ant problem, but from the defendant's point of view he was spraying for black ants.
Whatever may have been the position the plaintiff says that he paid another $500 for the service and he asked the defendant to attend his house annually. In my view a request to attend the home annually to do a check-up in relation to the existence of white ants is neither surprising nor unusual. In fact it would be something to be expected having regard to the fact that white ants had occurred in 1999 and the same pest control operative, namely, the defendant was attending for a second time within two or three years.
What is important in relation to the second attendance is by that time it seems that bedroom 4 and the new bathroom on the right-hand side of the map, Exhibit P8, had been constructed. Mrs Cleland gave evidence that the slab in respect of that work was laid some time in 1997. She says she remembers that because her children put hand marks into the wet slab and there may have been some initials scratched into the slab. It appears to be the case that the addition was built over an extended period.
It does not matter precisely over what period the additions were built on the home. What is significant is that a concrete slab type structural process was used and that the plaintiff and his wife, Mrs Cleland, gave evidence that under bedroom 4 on Exhibit P8 there was a solid slab but under the new bathroom having regard to the fall of the land there was an undercroft area. In any event, I am satisfied having regard to the photographs that I have seen in Exhibit P1 that the construction method used was again brick veneer and that the area under bathroom A as shown on Exhibit P8 was covered by the brick wall. The undercroft area was not accessible at the time of the second visit of the defendant whenever that may have occurred in 2001 or thereabouts.
The defendant denies that he was ever asked to do annual checks. He also denied that he ever agreed to do so. It is not necessary to resolve that matter here but it is worth noting that in light of being called to the property twice in 3 years the defendant steadfastly maintained that he did not suggest this possibility. That would seem to be part and parcel of the ordinary work of a pest controller but that is something that I leave to one side and do not place any weight upon it.
The plaintiff's case is that approximately four or so years after that second attendance and in and around 2005, and I find on balance it was in 2005 and not later or earlier, the plaintiff noticed holes in his wall and the effect of what appeared to be a white ant infestation in a picture frame on his wall.
I am able to identify that the walls in question are when looking at Exhibit P8 the walls marked adjacent to the letter B and the letter F.
The plaintiff requested the defendant to again attend at the premises to deal with what he perceived to be a white ant problem. The defendant attended at the property. The defendant drilled a hole in the floor of the new bathroom; it was a 10 mm hole. He used a scope to look in the area underneath the bathroom floor. The defendant identified a significant nest showing a real infestation of white ants in the area. He asked Mrs Cleland to look through the scope and Mrs Cleland also confirmed looking through the scope and seeing white ant activity.
The defendant also put the scope into the wall and I refer to the point C on Exhibit P8. At that time Mrs Cleland was also shown the white ant activity which was then occurring in the wall at point C on Exhibit P8. The defendant pointed out to her that there was activity, because he had upset the white ants by drilling through into the wall and under the bathroom floor.
Mrs Cleland gave evidence that a spray was then sent through the 10 mm hole in the bathroom floor and into the wall at point C. Mrs Cleland’s evidence was that the bathroom floor at about point A and marked with a red mark, was the point at which the insecticide was introduced underneath the bathroom floor. She recalls that at point C on Exhibit P8 spray was sprayed into the wall.
The defendant denies using any spray underneath the new bathroom floor. His evidence was that an operator could not spray through a 10 mm hole. The question is whether I accept this evidence or not and I find it difficult to accept for this reason: the defendant in his evidence volunteered that at point C on Exhibit P8 having drilled a 10 mm hole he sprayed tracking chemical through that 10 mm hole at point C on Exhibit P8. He explained to me that a tracking chemical is a chemical which attaches to, or becomes coated on the white ants and the white ants moving to the nests will take the chemical with them and kill other white ants in the nest.
On the evidence, one of the issues for my consideration and determination is whether there was spray used and if so, where. I am of the view that it is proved on the balance of probability that spray was used at point C because that is the evidence of both Mrs Cleland and the defendant.
I am of the view that having regard to that finding, it is as likely as not that some spray was also introduced under the bathroom floor. However that finding is not necessarily vital in light of the later findings that I am prepared to make in this matter.
I have already previously identified that the new bathroom floor at point A on Exhibit P8 is an elevated floor. There is an undercroft below that floor. The undercroft area was, as I have previously said, surrounded by a brick wall standing on the foundations of the new addition. At the time that he attended in 2005 at the property and drilled the holes as I have already described, the defendant informed Mrs Cleland and later Mr Cleland, the plaintiff, that he would need access to the area underneath the bathroom. At that time the access was blocked because of the foundation walls.
The defendant told the plaintiff and he told Mrs Cleland that once access was obtained he would return to treat the area underneath the bathroom floor. It was on that basis that the defendant said that he did not introduce any poison at all to the area underneath the bathroom floor and that he would need to return, having been gives access and gives that area a thorough treatment. I refer in particular to Exhibit P1, photo 26 together with P1, photo 38.
The important feature in these matters is that the defendant informed the plaintiff and led the plaintiff to believe that upon being given access he would return and complete the job.
The plaintiff gave evidence in relation to access being given, and I refer to the P1 photo 26. The plaintiff was unsure as to when the hole was cut in the wall as requested by the defendant. Mrs Cleland was much surer in her evidence. She said, and she was quite sure about this evidence, that that hole was cut within a month and that the defendant was notified.
On balance I accept the evidence of Mrs Cleland because she was the person who was at home and who was aware of everything that was going on. Of significance is that the defendant was notified about the fact that the hole had been cut, because the defendant admits that he was notified. The defendant was never able to say precisely when he was notified, but the important point featured here is that the cutting work was done as he requested and that he was notified. I am of the view that a fair inference on all the evidence is that the defendant was notified of the creation of the hole as soon as it was created. The plaintiff had a particular interest in making sure that this further infestation of white ants was dealt with quickly and properly although some poison spray had been introduced.
At the same time that this work was done, the plaintiff again requested that the defendant attend the home annually to perform checks on the white ant situation. That is a matter that again is unsurprising because of the recurrence of the white ant situation. It is common between the plaintiff and the defendant that annual checks did not occur. The defendant’s case is that he denies that those requests were ever made. On balance I think he was requested to attend but again, for the purposes of this matter that finding is not crucial.
What is known is that in 2005 the defendant identified a very serious infestation of white ants. The defendant agreed that the infestation was so serious that it needed to be treated urgently. The infestation was identified in at least two places, namely under the bathroom floor - that is the new bathroom at around point A - and in the walls at around point C of Exhibit P8. What is also known is that the signs on the wall at point B of Exhibit P8 was the reason why Mr Weetra, the defendant, was called back to the plaintiff’s property to give further treatment for the white ant infestation.
At the time that the defendant attended, he asked for and the plaintiff undertook the process of cutting a hole in the wall below the new bathroom. However the defendant gave evidence that when he attended the property on the third occasion and drilled the hole through the new bathroom floor, he said that he became concerned about who was responsible for the infestation of the white ants. That is understandable. This addition had only been in place for 3 or 4 years. It is apparent that the builder of the addition was responsible for ensuring proper white ant treatment before the building work was done, and in that instance reference is made to the relevant applicable building legislation and the building codes.

Despite the fact that he says that he became concerned as to who was responsible for the white ant outbreak, the defendant admitted that he said nothing about his concerns to the plaintiff. The defendant admitted in evidence that he told the plaintiff that he intended to and needed to return. This was implicit in any event because of what the defendant requested the plaintiff to do, namely to cut the hole in the wall for access to the defendant to the undercroft area. What the defendant said in his evidence was that he did not tell the plaintiff that he was not intending to return because he did not want to fix what he thought was somebody else's responsibility. According to his evidence he made a decision not to come back to the property. In passing he says that he was abused by the plaintiff.
The defendant also gave evidence that he assumed that the plaintiff would get someone else to fix the problem up when he did not do so. Again he did not tell the plaintiff about that, and the plaintiff and Mrs Cleland gave evidence that after cutting the hole in the wall they made six or seven requests to the defendant to return but the defendant did not do so.
The defendant admits that he was called on a number of occasions but did not admit the number of them. But the defendant’s evidence was at no time did he ever tell the plaintiff that he did not intend to return, that he did not want someone else's responsibility (as he saw the position) and that he would not come and do the work that was required.
The defendant gave evidence that he deliberately did not return to do the job. He gave evidence that he deliberately did not tell the plaintiffs that someone else should do it as he would not do the job. Finally he gave evidence that he deliberately did not tell the plaintiff of other methods that could be used if access could not be obtained to the undercroft area under the new bathroom.
In those circumstances in 2005 the plaintiff was left in the position where some insecticide was applied at least at point C on Exhibit P8. In relation to the area at point A on Exhibit P8 a hole was created and plugged but nothing seems to have been done at least on the defendant's case. On the plaintiff's case, which I accept, the defendant was asked to come back and he did not do so. He never told the plaintiff why and he said nothing about what should be done, because he was not prepared to come back.
In the period from 2005 to 2007 after a number of requests were made to the defendant to return to do the work, the plaintiff again noticed significant evidence of white ant infestation in the house.
The plaintiff again noticed holes in the family room wall. He also noticed holes in a picture frame on the wall. He lifted the picture frame from the wall and noticed marks on the wall consistent with the presence of white ants.
I refer in particular to Exhibit P1 picture 36 and following. Picture 36 shows the effect on the gyprock wall of the muddy deposits on the back of the picture hanging on the wall.
Again, looking at Exhibit P8 the walls in question are those adjacent to the letters B and F – the same as at 2005. When looking at Exhibit P8 and comparing P8 with the content of Exhibit P1 and picture 36 and following, it is obvious that the infestation appeared serious.
The plaintiff again called the defendant. The defendant's son took the phone call and attended at the property. At the time the defendant out of Adelaide on holidays. At the time that he attended, the defendant's son informed the plaintiff that there was dampness in the walls of the home and property and that there were cracked floor tiles and the plaintiff should contact the defendant once he returned from holidays.
The plaintiff gave evidence that he became increasingly concerned about the tiles cracking in the bathroom and in the family room area. As a result he called Murrays Pest Control (Murrays). Murrays attended the house and found white ants throughout the house and under the tiles. The white ants had eaten the masonite under the tiles causing the tiles to lose support and crack. Murrays did not seek access to any other floor or under slab areas including the undercroft under the new bathroom. Murrays advised of the seriousness of the white ant infestation.
Murrays installed three internal bait traps and then attended the house regularly every three to six weeks and renewed the bait trap and did other work as pest controllers to ensure that there was no further white ant activity to be found. It was only after Murrays were able to inform the plaintiff that there was no other white ant activity to be found could the plaintiff then do something about repairing the house. There was a difference in evidence between the plaintiff and Mrs Cleland in relation to how long this took. Mrs Cleland thought that it took between six and 12 months. The plaintiff thought that it was earlier than that. I think that Mrs Cleland is probably more accurate in her memory about that matter. In any event however long it took, once the all clear had been given by Murrays the plaintiff then retained the builder, Gubbins to pull down the walls of the house. In doing so it was discovered there was virtually no beams left holding up the walls in some areas of the house and there was very little if any masonite left under the floor tiles. As I have said, this is what caused the floor tiles to crack.
Murrays informed the plaintiff about the problems caused by the defendant spraying around their house. The plaintiff purportedly attempted to give evidence of what Murrays told him in support of the breach of duty and breach of contract case. In my view that evidence is hearsay and would not be received in proof of such matters. If such evidence was to be properly proved then it would require evidence from Murrays. I am not prepared to use s59J of the Evidence Act in relation to that matter, because the evidence is in the nature of expert evidence and is certainly a matter that would need to be properly proved, to be accepted by the court. I therefore reject that evidence and do not take it into account.
What I do accept is that it was necessary for Murrays to do the work that they did. No challenge was raised by the defendant about the costs of doing that work. The challenge raised by the defendant was that the work that was done was not necessary having regard to what could be said to have been any fault on the part of the defendant. Insofar as I am able to accept the plaintiff's case, I accept the figures set out on Exhibit P2 as well as Exhibit P9 being the breakdown of the costs charged by Gubbins for the work that he did in repairing the house after the “all clear” from Murrays.
In relation to the building work, that is the totality of the building work, I accept the evidence tendered by the plaintiff in relation to the quotation delivered by Gubbins which is disclosed on Exhibits P3 and P4 setting out the work that was done, the costs of the work and the fact that the work was paid for. I also accept the plaintiff’s evidence that he borrowed the first amount to do the repair works by increasing his mortgage upon which he is currently paying interest at the rate of 4.99% per annum.
Based on Exhibit P1 I accept that works were required to repair the house. However, the question for my consideration is, if there was a breach of contract or duty is there a causal connection between the breaches and the damages alleged.
There are two types of losses under consideration in this matter. The first is loss arising as a result of an alleged breach of contract and the second is a loss arising as a result of an alleged breach of duty.
It is necessary to discuss the manner in which loss arising from a breach is calculated in contract and in tort and then to consider questions of causation. I will consider contract and tort in turn, but I will consider the tort position together with the tests applicable under what is now called The Australian Consumer Code but was then generally called the Fair Trading legislation.
Damages for breach of contract are awarded on the principle that the injured party is, so far as money can do it, to be placed in the same situation as if the contract had been performed (Robinson v Harman (1848) 1 Exch 850 at 855; Wenham v Ella (1972) 127 CLR 454 at 471 per Gibbs J and at page 460 Barwick CJ). The authors of Cheshire and Fifoot’s Law of Contract, 9^th Australian Edition at paragraph 23.6 state the following:-
“The law sets out to measure the difference between the position that would have been created by full performance of the contract and the position that is actually being created by its breach. A money value is placed on each position. A loss is being suffered if the value of the hypothetical position is greater than that of the actual position. Damages are awarded to cover that loss.”
The usual description of contract damages is that they are calculated on the basis of “expectation damages” because the protection is in respect of the expectation of receiving performance and the expectation of receiving benefits flowing from the performance. Importantly, and it is particularly relevant in this case, the injured party (here the plaintiff) must be able to prove to the Court on the balance of probabilities that the expected outcome on which basis the claim for damages is made, would have been attained by the plaintiff. In this case, that would require the plaintiff to prove, in order to obtain all of the damages claimed, that if the contract had not been breached, then full protection in relation to the loss sustained would have been obtained and therefore, the plaintiff is entitled to an assessment of damages measured by that method.
The assessment of damages under the Trade Practices style legislation is normally damages in tort for deceit and these damages are not awarded as damages for the loss of an expected performance but are assessed so as to put the claimant in the position that he or she would have occupied had the tort or statutory contravention not been committed.
However often, the two forms of assessment of damages are the same or are so difficult to distinguish that it does not bear further scrutiny. Such a situation often occurs in the supply of professional services where, as here, the defendant has alleged to be subject to a duty of care arising by virtue of the contract as an implied term and also impose under the law of negligence for breach of duty. In my opinion, in light of the circumstances of this matter, the overlap between the two is so significant that only one assessment of damages needs to be made.
One of the difficulties faced in this matter is the absence of any substantive evidence in relation to the quantification of loss. I am required to bring a significant degree of pragmatism to the assessment of damages in this matter even though some level of assessing a hypothesis is involved. I am mindful however that the principle that mere difficulty does not relieve the Court from estimating damages as best it can does not mean that an assessment of damages will be made if the available evidence does not enable the Court to rise above mere speculation or guess work. I am satisfied in this matter that this is not the case in respect of the damages which are possible to assess.
There are two issues here. The first is the question of whether or not any damage has been proved. The second is whether the actions of the defendant are causative of the loss allegedly suffered by the plaintiff. In that respect, the plaintiff has the onus of showing that the loss for which he claims damages was caused by the breach of contract of the defendant the subject of this claim. In terms of causation, I mentioned for completeness two tests: the causa sine que non (but for) test and what is usually called the “common sense” test. The latter test addresses the question whether a particular loss was caused by a particular breach. That question is determined by applying the criteria of common sense rather than those of logic, philosophy or science. The “but for” test is colloquially expressed generally as being that it is enough to show that the loss would not have occurred but for the breach relied on. However, that may often not be enough because of a number of circumstances one including some necessary link in a chain of causation being missing and so the “but for” test would not be satisfied but the common sense test would be satisfied if it was applied.
On one view, the application of the “but for” test is really an application of common sense because the common sense test allows room for value judgments and policy consideration (March v E and MH Stramare Pty Ltd (1991) 171 CLR 507 at 516). In my opinion, in the circumstances of this matter, the application of the common sense test is apposite.
I turn then to consideration of questions of breach of duty, which in these circumstances, also covers breach of contractual duty which I will not separately deal with in these reasons.
To reiterate, the plaintiff retained the defendant as a pest control operator to come into the home of the plaintiff and treat and identify outbreak of white ants in the 2005 year. By virtue of that retainer, the defendant owed to the plaintiff a contractual duty of care arising implicitly under the terms of the contract between the parties as well as a duty of care arising from the type of relationship that existed between the parties.
In Blyth v Birmingham Water Works Co. (1856) 11 Exch 781 at 784 Alderson B said:-
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.”
Therefore, in the application of this test the defendant is taken out of the equation as an active participant and in his place has been interpolated a person of ordinary prudence or a hypothetical person using ordinary skill and care.
Where, as here, the defendant is performing a particular service, in carrying out that service, the defendant is required to show the skill normally possessed by persons exercising and professing to have that skill.
As in the law of contract, causation in tort is essentially a question of fact not susceptible of reduction to any one philosophical or scientific formula such as the “but for” test but rather is to be resolved as a matter of common sense and experience. In March v E and MH Stramare Pty Ltd (1991) 171 CLR 506 at page 509, Mason CJ said the following:-
“In philosophy and science, the concept of causation has been developed in the context of exploring phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.”
There is now a statutory formulation of negligence in the Civil Liability Act under s31(1), the content of which is as follows:-
“31—Standard of care
(1) For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.”
That is a general provision in relation to the standard of care. Causation is also generally dealt with in the same legislation at s34(1) which reads as follows:-
“34—General principles
(1)A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).”
Division 4 of Part 6 of the Civil Liability Act 1936 deals with negligence on the part of persons professing to have a particular skill. The standard of care is dealt with at s40 of the Act and that section reads as follows:-
“40—Standard of care to be expected of persons professing to have a particular skill
In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care and skill is, subject to this Division, to be determined by reference to—
(a) what could reasonably be expected of a person professing that skill; and
(b) the relevant circumstances as at the date of the alleged negligence and not a later date.”
The standard of care for professionals is described at s41 of the Act. That section reads as follows:-
“41—Standard of care for professionals
(1)A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time the service was provided) was widely accepted in Australia by members of the same profession as competent professional practice.
(2)However, professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3)The fact that there are differing professional opinions widely accepted in Australia by members of the same profession does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)Professional opinion does not have to be universally accepted to be considered widely accepted.
(5)This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of a risk of death of or injury associated with the provision of a health care service.”
The application of the Civil Liability Act is expressed in s4(1) and (2) of the Act, that read as follows:-
“4—Application of Act
(1) This Act is intended to apply to the exclusion of inconsistent laws of any other place to the determination of liability and the assessment of damages for harm arising from an accident occurring in this State.
(2) Subsection (1) is intended to extend, and not to limit in any way, the application of this Act in accordance with its terms.”
“Accident” is defined in s3 of the Act to mean:-
“accident means an incident out of which personal injury arises and includes a motor accident.”
It follows that in this case the Civil Liability Act does not operate as an exclusive code of liability rules. I have not approached my task here in that fashion but I am satisfied that I have already covered these matters. It is sufficient to say that when assessing skilled persons such as the defendant that the Court would only look to a median skill. The plaintiff must prove a departure by the defendant from the standards of the ordinary skilled test control operator. No evidence has been heard in this matter about the practice that might be accepted as proper by a responsible body of practitioners skilled in the art of pest control operations. In this case that is not necessary. It is my view that no practitioner skilled in the art of pest control operations as the defendant purported to be, could have or would have behaved in the same manner as the defendant. I am satisfied that the duty upon the defendant has been breached by the defendant as regards his obligations to the plaintiff. For the same reasons I am of the view that the defendant is in breach of his contract with the plaintiff. I set out my reasons hereunder.
In terms of contract, I am satisfied that in the 1999 visit the contract was to come and treat a white ant infestation. The duty of the defendant was to do all things necessary to undertake that work consistent with the standard of an ordinarily competent pest control operator/contractor. In the evidence before me I have found no evidence of any breach of contract or breach of duty by the defendant in relation to the 1999 visit. Having regard to the time of the commencement of these proceedings, such a claim would have been time barred in any event.

I therefore exclude from any considerations on my part the events of 1999.
In relation to the 2001 visit, on the evidence that is before me it is impossible to identify precisely what were the terms of the contract between the plaintiff and the defendant and therefore it is impossible to identify with sufficient precision the duties arising therefrom, or from any breach of contract or any breach of duty.
On the evidence before me, I am not satisfied that there is sufficient evidence on the issues that would permit a decision on that matter.
My view is different in relation to the 2005 visit. At that time the defendant identified an infestation and from the information in front of me he appeared to have followed the proper process of an investigation. The hole was drilled. The camera probe process was used and the identification of the infestation occurred. The defendant identified the need for treatment, the need for his return for other treatment which would likely have been a major treatment having regard to the level of the infestation.
I am satisfied on all of the evidence that at that time the plaintiff relied entirely on the skill of the defendant in and about his role as a pest control operator, and relied upon the defendant properly performing his duty as a pest control operator under the terms of his contract with the plaintiff.
In the view that I have formed, the defendant breached his contract and his duty.
I am satisfied that the defendant asked for a wall to be cut raising quite plainly an expectation in the minds of the plaintiff that he would return to complete his work. I am also satisfied that the defendant led the plaintiff to believe that he would return and he would complete the work. I am also satisfied that the defendant did not tell the plaintiff of his liability concerns relating to who may be responsible as the building work was so recently completed. What is known is that the defendant is well aware of a serious infestation as shown at point A, B and C of Exhibit P8 and that that infestation had to be treated.
The defendant did not say to the plaintiff that he would not return. A reasonable inference and logical conclusion of the plaintiff, absent anything said by the defendant, is that he would return. The defendant did not tell the plaintiff of his intention but then he assumed that the plaintiff would get someone else to do the job and he did not return. He deliberately did not return to do the work.
The defendant did not explain why he would make this assumption in the absence of any indication to the plaintiff. He was called on 6 or 7 occasions to come back to finish the job – he did not do so but said nothing to the plaintiff about why.
I am satisfied that the defendant deliberately did not tell the plaintiff to get someone else to do the work because he would not do the job. I am satisfied that the defendant deliberately did not tell the plaintiff that other contractors might use other methods, such as those used by Murrays, that those methods were available and could be used. All that occurred on that third occasion in 2005 is that at the very least on the defendant's case he applied some tracking insecticide but he did not tell the plaintiff that this would not be sufficient to deal with the problem.
In that context I do not have a need to hear from any expert pest contractor in relation to the performance of the defendant in respect of the property. I am satisfied on the evidence that this conduct of the defendant failed to observe the standard of an ordinarily competent pest control operator. For the same reasons I am of the opinion that the defendant was plainly in breach of his contract made with the plaintiff in 2005.
Having regard to those findings, I then turn to the question of causation. The question for my assessment is whether the conduct of the defendant has been a cause of any compensable loss that may have been suffered by the plaintiff and if so, the extent of that compensable loss. In the opinion that I have formed, any compensable loss suffered by the plaintiff is limited by the evidence that has been given.
There are some aspects of the matter which are not in doubt. An amount was paid to Murrays in respect of the work that Murrays did. However, having regard to the proper assessment of damages the amount paid to Murrays would be adjusted back to the difference calculated after allowing for what the defendant would have charged for doing the same work. Having regard to the absence of evidence on this matter, I must make a global assessment. I allow the sum of $3,000 plus GST.
I then turn to the balance of the claims made by the plaintiff. I have seen in Exhibit P1 the extent of the work done on the home of the plaintiff. On Exhibit P8, apart from A, B and C and F, are marked items D, E, F, G, H, J and K. I have also seen the contents of Exhibit P3 and P4. On the evidence I am not satisfied that the whole of the work done by Gubbins at the time that the repairs were carried out, could on the evidence as it developed in this matter, be said to be caused by the breaches of the defendant that I have identified.
I am mindful of relevant tests of causation, which I have referred to earlier in these reasons and similar to questions of breach of duty, all the plaintiff has to prove is that the defendant is a cause of the loss.
During evidence the plaintiff postulated that based on the infestation that occurred underneath the new bathroom, which was a major infestation that found its way through the Gyprock walls to point B, C, and F on Exhibit P8 the only logical conclusion that a court could draw is that the infestation moved through the house to points D, G, E and H, J, K. (in the kitchen and lounge areas).
I am not in a position, on the evidence, to agree or disagree with that proposition. The question arises whether that is a reasonable inference in all of the circumstances.
In my view there are inferences both ways in relation to the damage in the kitchen, the lounge and the walls in the lounge area. It is not clear to me whether or not the flow of infestation of the white ants would come from one point or from multiple points. That is because of the absence of evidence led by the plaintiff in relation to that matter.
I requested the plaintiff to obtain further evidence from a person in authority from Murrays, but the plaintiff was unable to do so. The plaintiff informed me that this person was married to his sister but that he could not manage to get that witness to come to the Court. At the commencement today I asked whether there was any further application to bring other evidence, and I was informed that there was no such application.
In the circumstances I am left with making an assessment as best I can on the information that is before me. That is the role of any trial judge, and merely because an assessment of damages is difficult does not mean that that task can be put aside by a trial judge. The important aspect here is to identify that at the time the defendant was called to the home in 2005, there was already a white ant infestation in existence. I will deal with that matter later.
But having reviewed Exhibits P3 and P4 and my notes of the evidence that I have taken, I am currently not satisfied on the whole of that evidence that a sufficient causal link has been established between the 2005 events on which I have made findings - and the whole of the plaintiff's damages claim.
I am satisfied that as a result of the failure of the defendant to properly treat the problem in 2005 and his breaches that occurred at the time, resulting in the irreparable damage to the walls of the plaintiff's house - as disclosed in Exhibit P1 and on P8, I am satisfied that some of the level of work that was carried out after 2005 would not have been necessary, except for the breaches of the defendant.
The task for me is to assess the difference between the position the plaintiff would be in if the defendant had done his job properly in 2005 and not been in breach of contract or duty compared to the position that the plaintiff is in now. It is likely that if the defendant had returned and done his job in 2005 some repair works would have been necessary and the question is who is responsible for the works. Similarly it is difficult to say on the evidence what cost and expense has been occasioned to the plaintiff over and above that work that might have been done and that is attributable to the defendant’s breaches. I am not satisfied on the evidence that the defendant is a cause of the whole loss suffered by the plaintiff and I am unable to say that the failure of the defendant was a cause of the whole of the loss suffered by the plaintiff. I am satisfied that the defendant is a cause of a portion of the loss suffered. The task for me is to make that assessment.
As I have said, no doubt some damage will have occurred by the time that the defendant saw the property in 2005. I am satisfied that if the defendant had completed the work that he was required to do, then on the whole of the evidence the plaintiff would not have been required to carry out all of the major structural work that actually occurred.
Because of the paucity of evidence, I am unable to say that the damage to the house that was repaired, that is the kitchen - or the whole of the tiled floor, was causally connected to the 2005 breach. This position is reached because of the paucity of information concerning those matters, and it is impossible for me to reach a conclusion that the test of causation has been satisfied.
In the end I have to do the best that I can based upon the information before me, and that is the way I have approached the assessment of damages in this case. I am satisfied that I have sufficient evidence before me to make a “broad brush” assessment of damages. To that extent the assessment will be global and much less specific that is usually the case. That is the fault of the plaintiff and the benefit of any doubt must fall in favour of the defendant. I approach my task by erring in favour of the defendant.
In my opinion some allowance must be made in favour of the plaintiff, using Exhibits P1, P2, P3, P4, P8 and P9. The allowance that I give to the plaintiff is my best estimate of the difference between the position that the plaintiff would have been in if the defendant had fulfilled his duties, both contractual and tortious, in 2005 - and the position the plaintiff found itself in two years later, having regard to what might be described - as accurately as possible, as the 'causal consequence' of those failures.
In my opinion that means that the plaintiff is not entitled to the full amount of its claims, but is entitled to an assessment on the basis that I have already set out. I have not made any specific allowances for contribution or contributory negligence. I was not asked to do so. On one view, the delay of the plaintiff after the event of 2005 may be said to have led to the events of 2007. I cannot accept that argument because of the completely unsatisfactory way that the defendant behaved in and after 2005. To make an allowance for contribution and contributory negligence in such circumstances would be to reward the defendant for his breach. And any benefit the defendant may claim under such principles is balanced by my deference to the defendant’s position if I am in any doubt in my assessment of damages.
In the views that I have formed the position would be the same if the assessment was made in deceit pursuant to the Fair Trading Act, as it operated at that time because the same issues of causation arise. I have deliberately not given separate consideration to the Fair Trading Act because in my opinion relevantly the tests are the same and the result would be the same.
In those circumstances I allow damages to the plaintiff on a global basis, doing the best I can in the following amounts
1.   Further cost of pest controllers over and above the amount that would have been paid to the defendant $3,000;
2.   Walls and linings $5,000;
3.   Repair of floor tiles $16,000;
4.   Skirtings $1,000;
5.   Painting $2,500;
6.   Rubbish $500;
7.   Removal and replacement of undercroft beams $1,000.
I have made a general assessment in relation to interest of some $6,000 for the period since 1 January 2008 to date, namely a period of some four and a half years or thereabouts. The interest figure is a global broad axe figure.
The total amount therefore is in the order of $35,000 including the $3,000 that I have allowed for extra costs incurred in respect of retaining Murrays.
I then turn to paras.18 and 19 of the statement of claim. Those paragraphs plead the deed of settlement which is Exhibit P6 and Exhibit P6A. That deed reads as follows:-
“DEED
Between
RONALD WILLIAM CLELAND
and
DANNY WEETRA
Recitals
The parties have agreed, without any admission of liability, to a resolution of all disputes between them arising out of the allegations constituting the claim for payment of damages, action number DCCIV-09-2285, and wish to reduce the terms and conditions of that agreement to writing and this deed shall be binding upon the parties and may be pleaded as a bar to any action or proceeding commenced in relation to any matter arising out of the alleged damages.
The Parties Agree
1.   Mr Danny Weetra will pay the sum of $25,000.00 (twenty five thousand dollars) to Mr Ronald William Cleland, no later than 20 November 2011.
2.   Mr Ronald William Cleland will file a Notice of Discontinuance in the District Court in relation to the proceedings DCCIV-09-2285 no later than 14 days after Mr Ronald William Cleland receives the said $25,000.00.
3.   The parties agree that they shall each bear their own legal costs in relation to the above mentioned District Court proceedings.
4.   The parties agree that they shall keep the terms of the settlement confidential.
5.   Executed as a deed by the parties on the last date written below.”
The first question that arises is whether there is any form of merger of causes of action by virtue of the content of this deed and the second question that arises is whether in light of my findings in relation to the first point whether there is any accord and satisfaction.
The doctrine of merger operates to extinguish the lesser of two estates or rights where there is a lesser right which coincides with some greater right and is subservient to that greater right and so the title to the two rights is merged.
The usual example given is when a life tenant purchases the reversion in fee simple of property; the life tenancy will be extinguished on the merger of the lesser and the greater interests. Another example is where there is an oral agreement to create a charge which is later created in writing. Equity will not recognise what in law amounted to a merger if to do so runs counter to the party's actual or implied intentions.
Generally a simple contract debt will merge into a debt of a higher nature such as a specialty debt, however, the merger of a simple contract debt into a specialty debt depends on the intention of the parties. A merger may only apply to existing debts and will not apply to the case of a running account with a bank.
In my opinion, having regard to the basic principles of the doctrine of merger at law or in equity there is no evidence to disclose that the lesser of two estates or rights has been extinguished when that lesser right coincides with some greater right.
The lesser right in this instance must be identifiable and the greater right must also be identifiable. In my opinion, the greater right is the right of damages not the right under the deed. That being so the doctrine of merger will not apply.
The question arises as to whether or not there is an accord and satisfaction by virtue of the terms of the deed. This is because it may be argued that the deed is a compromise agreement. The law in relation to compromise agreements is reasonably well settled. Those compromise agreements generally fall into two classes. One is what is called an “accord executory” which is the form of a unilateral contract under which a plaintiff promises to abandon a claim in exchange for the defendant doing something such as paying money.
The second type of compromise agreement is termed “accord and satisfaction” whereby a plaintiff promises to abandon a claim in exchange for the defendant promising to do something. (McDermott v Black (1940) 63 CLR 161 at 183-185).
As the learned editors of Cheshire and Fifoot's Law of Contract 9^th Australian edition at paragraph 4.24 (p.191) say:-
“The significance of the distinction arises when the defendant fails to do what is required and the effect this has on the original cause of action or complaint that is being settled. In the case of an accord executory where the defendant fails to perform the requested act the plaintiff's original rights continue on and can be enforced and no settlement agreement has eventuated. (Blue Moon Grill Pty Ltd v Yorkey's Knob Boating Club Inc [2006] CQCA 253). In the case of an accord and satisfaction the plaintiff has foregone his or her original rights and it can only enforce the settlement agreement (Federal Commissioner of Taxation v Orica Ltd (1998) 194 CLR 500 at [116]. Thus in the case of accord and satisfaction the plaintiff replaces the original claim which may or may not have succeeded with an enforceable contract.”
The question which arises here is whether or not what has occurred is that the plaintiff has replaced his damages claim with an enforceable contract. In the opinion that I have formed he has not. I refer in particular to the decision of Dixon J in McDermott v Black at p.183-184 as follows:-
“The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of his cause of action. What he takes is a matter depending upon his own consent or agreement. It may be a promise or contract or it may be the act or thing promised, but whatever it is, until it is provided and accepted the cause of action remains alive and unimpaired. The accord is the agreement or consent to accept the satisfaction. Until the satisfaction is given, the accord remains executory and cannot bar the claim. The distinction between an accord executory and an accord and satisfaction remains as valid and as important as ever. An accord executory neither extinguishes the old cause of action nor affords a new one ... The distinction depends on what exactly is agreed to be taken in place of the existing cause of action or claim. An executory promise or series of promises given in consideration of the abandonment of the claim may be accepted in substitution or satisfaction of the existing liability or on the other hand promises may be given by the party liable that he will satisfy the claim by doing an act making over a thing or paying an ascertained sum of money and the other party may agree to accept not the promise of the act, thing or money in the satisfaction of his claim. If the agreement is to accept the promise in satisfaction the discharge of the liability is immediate if the performance then there is no discharge unless and until the promise is performed.”
I refer also to the judgment of Warren CJ in R & A Cab Co Pty Ltd v Kathleen Rutty, Edgar George Rutty, Horizon Synergy Pty Ltd and Lindsay Kotzman reported in [2007] VSC 62. I refer in particular to her Honour's comments on these matters at paras.[11] and [12] of the decision and after making a reference to the text Greig and Davis (DW Greig and JLR Davis, The Law of Contract (1987) 1184-85). Her Honour said as follows:-
“The learned authors also note that whether in a particular case an accord requires an act by the debtor in satisfaction or merely his promise is clearly a question of the construction of the particular agreement in light of all of the circumstances; but it would appear that generally the courts lean in favour of construing the agreement as requiring performance rather than a promise in consideration for the compromise.”

Consistent with these authorities it is necessary for me to construe the document Exhibit P6/P6A.
In the recitals it records that there has been an agreement without admission of liability to a resolution of all disputes including this claim for damages. It also states in the recitals that the deed is binding upon the parties and may be pleaded as a bar to any action or proceeding commenced in relation to any matter arising out of the alleged damages.
It is difficult to know what effect this part of the recital has because there was already an action or proceeding commenced in relation to the matter arising out of the alleged damages. Therefore, in my view, that part of the recital can only be reasonably understood to be referring to some other proceeding commenced in relation to some other aspect of alleged damages to the house or the property which has not been canvassed before me here.
There are then five paragraphs of obligation. The first is for the defendant to pay the plaintiff $25,000 no later than 20 November 2011. The second is the most important in light of the first and the recitals. The second requires the plaintiff to file a notice of discontinuance of these proceedings (hence my reference earlier to questions of other proceedings) in relation to these proceedings no later than 14 days after the plaintiff receives the money, namely the $25,000 (from the defendant).
In my opinion having regard to the relevant authorities that I have mentioned, the substantial issue here is that the contract is executory to the extent that there will be no end to these proceedings until the amount of $25,000 is paid. That is, the parties are agreeable to the position that the proceedings remain on foot and will only be terminated once the money is paid. It is common ground that the sum of $25,000 has not been paid.
I am therefore satisfied that the contract is still executory and this appears to be the intention of the parties to be derived from the wording that they have used in the document. It follows that I am not satisfied that there has been an accord and satisfaction by the deed because in my view the deed records an accord executory.
In the result there will be judgment for the plaintiff for damages in an amount of $29,000 plus interest of $6,000 in total $35,000.
The plaintiff is entitled to an order for costs to be taxed.