Correa v He
[2021] VCC 679
•3 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-04224
| MARIA CARMEN CORREA | Plaintiff |
| v | |
| LIN HE | First Defendant |
| and | |
| ZHEN LI | Second Defendant |
| and | |
| iSELL GROUP PTY LTD (ACN 153 866 932) (trading as iSELL GROUP SPRINGVALE) | Third Defendant |
| and | |
| MCDRE SPRINGVALE PTY LTD (ACN 147 688 597) (trading as McDONALD REAL ESTATE SPRINGVALE) | Fourth Defendant |
| and | |
| MACH 10 PTY LTD (ACN 160 983 344) (trading as iSELL GROUP) | Fifth Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16 and 17 March, 5, 6, 7, 10, 11 and 20 May 2021 | |
DATE OF JUDGMENT: | 3 June 2021 | |
CASE MAY BE CITED AS: | Correa v He & Ors | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 679 | |
REASONS FOR JUDGMENT
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Subject: OCCUPIER’S LIABILITY
Catchwords: Cause – claim by plaintiff for damages for injury suffered to her left leg and foot when a low brick wall collapsed – wall located on the boundary of premises owned by her, and an adjoining premises which was leased to tenants – claim against first and second defendants as owners of the leased property and third, fourth and fifth defendants as managing real estate agents – issue as to what caused the wall to fall – consideration of Part X of the Wrongs Act 1958 – factual findings as to whether there were defects observed in the wall and whether those defects were made known to the real estate agents – whether duty owed by the first and second defendants delegated to the third, fourth and fifth defendants – whether breach of the duty owed by the defendants
Legislation Cited: Wrongs Act 1958, s14B
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Jones v Bartlett & Anor (2000) 205 CLR 166; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Ahluwalia & Ors v Robinson [2003] NSWCA 175
Judgment:No breach of duty – judgment for the defendants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota with Ms L Burke and Mr P Haddad | Henry Carus & Associates |
| For the First and Second Defendants | Mr J Angenent | Meridian Lawyers Limited |
| For the Third, Fourth and Fifth Defendants | Mr A Donald | Eventus Lawyers Pty Ltd, trading as SLF Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Mrs Maria Correa, and her husband, Mr Ruben Espanosa, were and remain owners of a property at Unit 3, 9 Arnold Street, Noble Park (“Unit 3”). They purchased the property and have lived there since 2013. Immediately adjoining Unit 3 is similar property, Unit 4, 9 Arnold Street, Noble Park (“Unit 4”), owned by Mr Lin He and Ms Zhen Li, the first and second defendants. They purchased Unit 4 as an investment property around 2009.
2 By agreement, Mr He and Ms Li appointed one or more of the third, fourth or fifth defendants (generally, “the real estate agents”) to manage Unit 4. It was a term of the Management Agreement that the agents would “arrange property maintenance/repairs/renovations” in respect of Unit 4.[1] In December 2015, Unit 4 was leased to tenants, Mr Shaiful Islam and Mrs Asma Islam.[2]
[1]Exhibit D1-F
[2]Exhibits D1-B, D1-C
3 When Mrs Correa and Mr Espanosa purchased Unit 3, the side fence between Units 3 and 4 comprised an upper part, constructed of wooden pickets (“the side picket fence”) and a lower part comprising a low brick wall, about six bricks high (“the side brick wall”). The side picket fence was in the condition as shown in the upper photograph at Court Book page 787. There were plants on their side of the fence, and a bow or bend in the wooden pickets. Mr Espanosa removed the plants. An upright post in about the middle of the fence was rotten, and he arranged a tradesman to replace it (it was sunk in concrete) and to straighten the picket fence. For reasons of privacy, he glued decorative foam panels to his side of the side picket fence as shown in the bottom photograph at Court Book page 787.
4 On 13 October 2016, Mr Espanosa, noticed that the side brick wall was leaning towards Unit 4 at an angle of about 20 to 30 degrees from the vertical.[3] He told his wife, and they went down the driveway of Unit 4 to investigate. She was concerned as their neighbour had young children. Mr Espanosa saw a crack in the bricks of the side brick wall.[4] Mrs Correa walked between the wall and a car that was parked in the driveway, a space said to be about 40 centimetres.[5] As she approached the middle of the wall,[6] it collapsed, and the bricks fell onto Mrs Correa’s left foot, causing an injury (“the incident”).[7] She had not noticed any cracks or other defects, and there had been no issues relating to the wall brought to her attention, before 13 October 2016.[8]
[3]Transcript (“T”) 355-6
[4]T361, Line (“L”) 14
[5]T138, L19; T357, L10
[6]Ms Correa marked the point where the side brick wall collapsed with a blue cross on the bottom photograph of exhibit 1
[7]See photograph of collapsed side brick wall, exhibit 2
[8]T68
5 Mrs Correa suffered a fracture to her foot. An ulcer developed and was treated with antibiotics. She made a slow recovery but is still significantly debilitated and has been unable to return to work. A range of her social, domestic and recreational activities have been affected.
6 There was evidence from two engineering experts as to the cause of the fall of the side brick wall.[9] Those experts, Mr Mark Janus and Mr Anthony Perkin were in agreement on almost all matters, save as to whether, in the strong winds recorded shortly before the incident, the side picket fence with decorative panels glued to the Unit 3 side, pushed against the side brick wall, causing it to fall. For the reasons which I will shortly give, I do not have to decide the point.
[9]Exhibit 8 – report of Mr Mark Janus of MRM Group, who also gave viva voce evidence; exhibit D1-J, report of Mr Anthony Perkin of FMG Engineering
7 What is significant from this expert evidence is the following:
(a) the side brick wall was 110 millimetres wide (consisting of a single brick, or “skin” or “leaf”) and 600 millimetres (about six brick courses) high. It had been in place for several decades;
(b) neither the street end[10] nor the house end of the side brick wall was secured to any structure. It was not supported by any “masonry piers, thickened wall sections or steel reinforced cavity brickwork”.
[10]See bottom photograph CB 275, exhibit 5
(c) that meant that the side brick wall “… was not structurally adequate to resist lateral loading as per current building codes and best practices”;
(d) the middle upright fence post, which had been secured in concrete and which was used to support the pickets, did not support the side brick wall. The experts disagreed as to whether the post was touching the brick wall;
(e) the side brick wall sat on a relatively thin layer of mortar[11] which rested on the garden soil and was without a secure footing. It was “just sitting there under its own weight”;[12]
[11]See photograph CB 339
[12]T457, L20
(f) the side brick wall fell due to lateral forces related to soil retention, vegetation and/or wind loads in circumstances where it was not restrained laterally. In the week before the incident, the wind was “strong and gusty”;[13]
[13]CB 782, 767
(g) Mr Perkin was of the opinion that had the decorative panels not been fixed to the picket fence, the side brick wall would not have collapsed;
(h) Mr Janus described the side brick wall as an “inherently unstable structure”.[14] Even “shaking the wall” would be a concern and it would not take a lot to topple it.[15]
[14]T437, L25
[15]T458, L1
8 The plaintiff alleges that there were reports or complaints of cracks or a gap in the side brick wall by various people to one or other employee of the real estate agents prior to the incident. No action was taken in response. The plaintiff further alleges that after the incident, the tenant of Unit 4, Mrs Islam, in discussion with Ms Jenny Tan, an employee of the fourth defendant, confirmed she had previously telephoned those agents several times complaining about cracks in the wall.
9 At the time of the incident, Mrs Correa was working on a full-time basis as an aged care worker. In the ten or twelve years before the injury, she was able to maintain full-time employment,[16] which she described as mostly heavy work,[17] notwithstanding being diagnosed with rheumatoid arthritis some years earlier.[18] Because of her injury, she says she was not able to return to her employment, nor to any other employment since the day of the incident. She continues to suffer pain and restriction of the left foot and a related psychological reaction. More recently, it has been recommended she undergo knee replacement surgery as a result of the continuing arthritis in the knees.
[16]T61, L21
[17]T59, L14
[18]T75
Issues to the determined
10 Having discussed the matter with Counsel, the issues to be determined in this proceeding are:
(a) an assessment of the credibility and reliability of the evidence about defects in the side brick wall of:
(i) the tenant, Mrs Asma Islam, in particular as to whether she observed, and had communications about, cracks in the side brick wall with a representative of one of the third, fourth or fifth defendants;
(ii) a carpenter, Mr Van Tran Nguyen, in particular as to whether he had a conversation with Mr Shaiful Islam and Mr Espanosa around March 2016 about cracks and a gap he says he observed in the side brick wall, and whether he reported that to Ms Jenny Tran;
(iii) The plaintiff’s husband, Mr Espanosa, as to whether he had a conversation with Mrs Islam and Ms Jenny Tran after the incident where Mrs Islam told Ms Tran that she had reported cracks in the side brick wall on previous occasions to the real estate agents;
(b) what caused the side brick wall to fall?
(c) in relation to the landlords:
(i) was any duty owed to the plaintiff delegated to the third, fourth or fifth defendants?
(ii) if not, were they aware, or should have been aware of any defects in the side brick wall prior to the incident?
(iii) if so, were they in breach of the duty of care owed to the plaintiff in accordance with the provisions of Part X of the Wrongs Act 1958?
(d) in relation to the third, fourth and/or fifth defendants:
(i) was any employee aware, or should they have been aware of any defects in the side brick wall prior to the incident?
(ii) were any in breach of the duty they owed in accordance with the provisions of Part X of the Wrongs Act 1958?
(e) if yes to the allegations of breach in either of paragraphs (c) or (d), was the plaintiff contributorily negligent in walking near the side brick wall when she knew it was leaning?
(f) If yes to the allegations of breach in both of paragraphs (c) and (d), in what proportion is it fair and reasonable for the first and second defendants; and the third, fourth and/or fifth defendants; to bear responsibility for the plaintiff’s loss and damage?
(g) If yes to either (c) or (d), then in what sum is it fair and reasonable to assess the plaintiff’s:
(i) pain and suffering damages
(ii) economic loss damages
(iii) medical and like expenses
(iv) personal care services damages?
(h) If there was a breach by the third, fourth or fifth defendants, which of those defendants was the responsible real estate agent at the time of that breach?
The evidence of Mrs Islam
11 I shall first analyse the credibility and reliability of the evidence of various witnesses called as to defects in the side brick wall.
12 Mrs Islam was a tenant at Unit 4, with her family, from December 2015 until March 2019.
13 In the course of her evidence in chief, Mrs Islam said at some time prior to the incident, the property manager, Jenny, came to Unit 3. She said it was at the time of “the inspection”.[19] They spoke at the front gate of the house. Mrs Islam noticed a big crack in the side brick wall.[20] Mrs Islam said to Jenny that the crack needed to be fixed up as it was not safe for her children.[21] Mrs Islam thought it was Jenny, but it may have been another property manager.[22] Jenny said she would let the owner know and it would be fixed.[23]
[19]T235
[20]T235, L5
[21]T236, L24
[22]T257, L21
[23]T237, L23
14 Mrs Islam accepted that on a number of occasions, she completed and signed repair request forms in relation to maintenance work to be carried out at Unit 4.[24] In a repair request form of 30 March 2016, Mrs Islam raised the issue of a fence which needed to be fixed.[25] That, however, was in respect of the front fence.[26] She did not complete any such form in relation to the side brick wall nor make a written complaint.[27]
[24]Exhibit D1-D
[25]Part of exhibit D1-D
[26]T251, L29
[27]T258, L12
15 All her communications were with the agent. She had no communication at all with the owner.[28]
[28]T242, L6
16 Mrs Islam did not get a response from Jenny, or any other agent, in respect to the crack in the side brick wall.[29] Mrs Islam did not follow up the issue.
[29]T260, L3
17 In cross-examination, it was put to Mrs Islam that the agent, Jenny, would give evidence she had never been to the property before the incident. Mrs Islam said it may have been an agent with another name.[30] It was put that Ms Monica Tran would give evidence that she undertook an inspection of the premises only on 8 June 2016. Mrs Islam said it could have been Monica or Jenny.[31]
[30]T265, L11
[31]T266, L2
18 At the inspection of 8 June 2016, Mrs Islam agreed that the issues raised were trees at the front of the house, and the pickets of the front fence, which were falling off.[32] Mrs Islam was taken to the routine condition report dated 9 June 2016 and agreed that the items set out were accurate. She accepted there was no reference to the side brick wall.
[32]T272, L17
19 Mrs Islam then said that the conversation she had with the agent about the side brick wall was not in June 2016, but some days before the incident. It could have been with Jenny or Monica.[33] It was maybe fourteen days, or a few days, before the incident that Mrs Islam told Jenny or Monica about cracking in the side brick wall. She did not think that it was at the time of the inspection in June 2016.[34] The condition of the side brick wall was really bad a few days before the incident.[35]
[33]T284, L18
[34]T286, L17
[35]T287, L1
20 At that time, Mrs Islam telephoned the agent.[36] She had telephoned the agent on many occasions to have a front gate installed for the safety of her children. As a result of that telephone call, someone came out to her house in September or October 2016. The purpose of the phone call was related to the front gate, but also to the side brick wall.[37] Mrs Islam then said that in the phone call she did not mention the side brick wall.[38]
[36]T290, L22
[37]T292, L6
[38]T293, L2
21 Mrs Islam did not make any comment about the side brick wall during the June 2016 inspection given that, at the time, the condition of that fence was good.[39] There was a crack, but it was not big. By September or October 2016, it had become a big crack. It was not until September or October 2016 that Mrs Islam drew the attention of the agent to the crack in the side brick wall.
[39]T293, L23
22 Mrs Islam then said it was Jenny who came to Unit 4 in September or October 2016.[40] She disagreed that Jenny had never been to the home before the incident.[41] A few days or a week after the incident, someone from the real estate agents came out to the property again.[42] Mrs Islam could not recall whether it was the same person who came after the incident, as before.
[40]T296, L26
[41]T299, L10
[42]T300, L10
23 She denied she had confused a meeting she said occurred shortly before the incident with Jenny, with a meeting after the incident.[43]
[43]T301, L14; T302, L6
24 Mrs Islam gave her evidence with the aid of an interpreter. However, she regularly responded in broken English despite being requested to answer through the interpreter. Often, her evidence was difficult to understand. Her answers in cross-examination were often non-responsive.
25 At the outset, Mrs Islam said she met with a person she thought was Jenny, although it may have been another property manager, at Unit 4 at the time of an “inspection” at which she complained of a large crack in the side brick wall. The only evidence of an inspection by any real estate agent, aside from when the tenancy commenced, was in June 2016.
26 Mrs Islam appeared to accept that the conversation with Ms Jenny Tran at “the inspection” was in June 2016. However, when pressed, she accepted she was mistaken and changed her evidence. She said she did not recall any discussion during that inspection, but rather a conversation occurred a few days or weeks before the incident. Mrs Islam then said that she could not recall when the conversation took place. Again, she changed and said it was maybe fourteen days, or a few days, before the incident. She could not recall whether she spoke to Ms Jenny Tran or Ms Monica Tran. At another point in her evidence, Mrs Islam said that it was definitely Jenny, and not Monica who came to the property to talk about the gate. She said that, by that time, the state of the wall was “really bad”.
27 At some time before this conversation, Mrs Islam said that she telephoned the agent to complain about the crack in the side brick wall. Yet no such complaint was recorded in the real estate agent’s tenant files.[44] She said the call was related to an issue about installing a front gate for her children’s safety. There is reference in the Repair Request Form of 8 June 2016 to “gate fixed up”. In the phone call, initially she said she complained about the lack of a front gate and the side brick wall, but then appeared to change and say it was only the front gate.
[44]Exhibit D3-5B
28 At the routine inspection of June 2016, Mrs Islam said she did not complain about a crack in the wall because it was not big at that time. Over the subsequent months it became more substantial. That evidence presumed that Mrs Islam did observe a crack in June 2016 around the time of the routine inspection. If she did, it is unusual that she did not prepare a repair request form, which she had completed in the past.
29 As can be seen, there were uncertainties and contradictions in the evidence of Mrs Islam. I am of the view that her evidence changed as to the time she had the conversation with Ms Jenny Tran from June to September or October 2016, in order to emphasise that the crack had become substantial. Her evidence stands in contrast to that of Ms Jenny Tran, who said, and I accept, she had never visited the property until after the incident.
30 All in all, I found the evidence of Mrs Islam unsatisfactory. I find I am unable to rely upon the accuracy of her evidence as to whether she made phone calls to the real estate agent about cracks, as to the time of the alleged conversation at Unit 4, and the person with whom she had it. In fact, I am unable to rely on her evidence as to any conversation about a crack in the side brick wall at all.
The evidence of Mr Nguyen
31 Mr Nguyen is a carpenter, and is the proprietor of a business, JNJ Homes.
32 After the side brick wall collapsed, he was responsible for removing the debris and erecting a new Colorbond fence between Units 3 and 4[45].
[45]See photograph – CB 282 – part of exhibit 7
33 He said before the incident, he was requested to attend the premises and provide a quotation for both the front fence and the side fence.
34 When he attended Unit 4 before the incident, the side brick wall was cracked and there was a gap of about 10 or 15 millimetres between the brick part of the side brick wall, and the pillar at the front fence as can be seen on the bottom photograph at Court Book page 275[46]. Mr Nguyen thought the side brick wall was unsafe[47] and that it might fall down. The cracks were in about the middle of the wall.[48] There was one big one. Mr Nguyen gave a quotation to repair the side brick wall to Mr Espanosa, the owner of Unit 3, and also to Ms Jenny Tran.
[46]Exhibit 5
[47]T308, L12
[48]T308, L30
35 Mr Nguyen was taken to a chain of emails,[49] commencing with an email from Ms Jenny Tran to Assured Property Solutions of 22 March 2016. Assured Property Solutions used him as a subcontractor. The email sought a quotation for the front fence only. That email was then forwarded to Mr Nguyen by Daniel Russell of Assured Property Solutions. Mr Nguyen provided a quotation, dated 30 March 2016. He accepted the works referred to related to the front fence, and not the side picket fence or the side brick wall. Mr Nguyen went out to Unit 4 between 22 and 30 March 2016.[50] It was at that time he observed the crack in the side brick wall and the gap. He thought he spoke to Ms Jenny Tran about fixing the side wall but no-one got back to him until later.[51]
[49]Exhibit 3
[50]T311, L27
[51]T312, L8
36 When he first saw the crack and the gap in the side brick wall and spoke to Ms Jenny Tran, Mr Nguyen thought it was maybe a month or two before his inspection of March 2016.[52] He rendered an invoice for the repair and replacement of the side fence later, in March 2017.[53]
[52]T313, L3
[53]Exhibit 4
37 In the conversation with Ms Jenny Tran, Mr Nguyen said she told him to just do the front fence.[54] He told Ms Jenny Tran that the side brick wall was cracked and needed to be replaced.[55] This was before the email of March 2016.
[54]T312, L13
[55]T314, L4
38 Mr Nguyen said he prepared a quotation for the side brick wall after receiving a text message from Ms Jenny Tran,[56] and that he had kept that quotation as part of his records.[57] He said, further, that he had given it to the solicitor,[58] to the owner of Unit 3 and to Ms Jenny Tran.[59] He said he was sure he had prepared it before the wall collapsed.
[56]T320, L16
[57]T319, L1; L12
[58]T319, L17
[59]T320, L7
39 The quotation was called for by counsel for the first defendant.
40 Having had the opportunity to search for the quotation for the side brick wall overnight, the next day, Mr Nguyen accepted that his evidence that he had prepared a quotation for the side brick wall was mistaken.[60] He produced another quotation,[61] dated 13 November 2016, related to the erection of a Colourbond fence along the boundary, which was prepared after the incident.
[60]T325, L2
[61]Exhibit D1-E
41 It was put to Mr Nguyen that Ms Jenny Tran had never had any conversations nor dealings with him prior to the collapse of the wall. He said he could not remember,[62] but thought he had spoken to her on the phone a few times.[63] He said he did a few fencing quotes for her.
[62]T330, L1
[63]T328, L17
42 Rather extraordinarily, Mr Nguyen then said he could not remember whether he had had any conversation with Ms Jenny Tran about the front fence, or the side brick wall, before the incident.[64] However, he then appeared to say that he did have a conversation with Ms Jenny Tran about a crack in the side brick wall and the need to replace it.[65]
[64]T336, L10
[65]T337, L27
43 In the course of cross-examination, Mr Nguyen said that at some point prior to the incident, he had a conversation with Mr Espanosa and the male tenant of Unit 4 while they were standing “in front of the gate” of Unit 4 about cracks and the gap in the side brick wall.[66] This had not been raised in the course of his examination-in-chief. He said this discussion occurred on 22 March 2016, the day he went there to inspect and prepare a quotation for the front fence.
[66]T330, L11
44 When asked what was discussed, Mr Nguyen said it was “... about the front fence because I saw some cracks there, so we just talk[ed] about the cracks and the side fence”.[67] When asked what was said about the side fence, he said “Like, we need to do it”.[68]
[67]T334, L1
[68]T334, L6
45 Mr Nguyen could not recall if he had spoken to Daniel Russell from Assured Property Solutions about the cracks and the gap, although he thought he had: “… they don’t want to do it”.[69] He then said the person who told him to prepare a quotation for the front fence only, was Daniel.[70]
[69]T332, L17
[70]T333, L18
46 Mr Nguyen said he had no contact with the owner of Unit 4.
47 He had carried out some work for Mrs Correa and her husband, including replacing the side brick wall after it collapsed. He thought he had been to Unit 4 “a few times” before the incident.[71]
[71]T305, L22
48 At the outset, Mr Nguyen’s evidence was that he went to Unit 4 in around March 2016 to provide a quotation for repair works to the front fence. At the time, he noticed cracks in the side brick wall and a gap where that wall met the front fence. He considered that the wall might fall down. As a result, he provided a quotation to repair not only the front fence, but the side brick wall. While there is no doubt he provided a quotation for works to the front fence in March 2016, he admitted, having searched for a quotation for the side brick wall, that he was mistaken, and no such quotation had been prepared.
49 Mr Nguyen’s evidence was riddled with mistakes and inconsistencies. At one point he was sure he had spoken to Ms Jenny Tran prior to the incident about the state of the side brick wall, and then said he could not remember, as it was so long ago.
50 His evidence that he had a conversation with Mr Espanosa and the male tenant of Unit 4 about cracks in the side brick wall only came out in the course of cross-examination. That does not make that evidence false, but it presumes he did not advise counsel for the plaintiff of that prior to giving evidence.
51 With these various uncertainties and inconsistencies, I found Mr Nguyen a quite unreliable witness. I am unable to accept his evidence that he had prepared a quotation for the side brick wall, that he had any conversations with Ms Jenny Tran about it, or that he had a conversation with Mr Espanosa and the tenant of Unit 4 about cracks or a gap in the side brick wall.
52 The evidence of Mr Nguyen stands in contrast to that of Mr Espanosa, who made no reference to any meeting with him in or around March 2016, and in contrast to that of Ms Jenny Tran, who said she had never met nor spoken to Mr Nguyen and had not been to the premises prior to the incident.
The evidence of Mr Espanosa
53 After Mr Espanosa and his wife purchased the property in 2013, he removed vegetation from the area near the side brick wall. A rotten central post was replaced by a tradesman he employed to carry out the work. That person also ensured the side picket fence was straight. There was no bend.[72] Mr Espanosa glued the foam decorative panels onto the picket fence.
[72]T343, L25; T345, L22
54 Prior to the incident, he did not see any cracks in or leaning of either the side brick wall or the side picket fence.
55 On the day of the incident, Mr Espanosa noticed the side wall had a crack in it, and was leaning around the middle. He demonstrated the extent of the lean as being approximately 20 to 30 degrees from the vertical.
56 After the incident, Mr Espanosa removed the pickets of the side fence because it was intended to replace it with a Colorbond fence.[73] He disagreed that he removed the picket fence as it was unstable because of the collapse of the side brick wall.[74]
[73]T362, L18
[74]T406, L12
57 Mr Espanosa said he met with Ms Jenny Tran, and his neighbour, Mrs Islam, after the incident. There was a discussion about replacing the fence. Mr Espanosa said, in this discussion, he heard Mrs Islam say:
“‘I told you about this fence, that it was falling … I called twice to the real estate and left you a message there … .’”[75]
[75]T363, L13, T427
58 He said Ms Jenny Tran replied that she had never been told about it.[76]
[76]T363, L10; see further T427, L8
59 It was put to Mr Espanosa that Ms Jenny Tran came to the property on 20 October 2016 and while she was taking photographs he came out and had a conversation with her. It was suggested at no time did Mrs Islam join them.[77] Mr Espanosa denied this. It was suggested there was never a discussion about the state of the side brick wall, other than it had to be repaired. He agreed that there was no discussion about a crack because he was unaware of any crack in the side brick wall until the day of the incident.[78]
[77]T414, L9
[78]T414-415
60 I found Mr Espanosa a satisfactory witness attempting to give a fair account of the issues involved in the case.
61 Mr Espanosa sent an email to Ms Jenny Tran on 31 October 2016, enclosing a letter provided by his wife and requesting insurance details about the property.[79] There is no reference in the email nor letter to any conversation about the meeting with Ms Jenny Tran and Mrs Islam. Mr Espanosa sent further emails on 15 and 22 November 2016.[80] Again, there was no reference to the meeting, nor to the attribution of responsibility in relation to the fall of the fence. Had Mr Espanosa been of the view that cracks in the wall had been reported to Ms Jenny Tran by Mrs Islam, or anyone else, I would have expected that issue to have found its way into that correspondence. Setting aside Mrs Correa’s injury, such knowledge may have affected responsibility for payment for the replacement fence.
[79]Exhibit D3-5A
[80]Exhibit D3-5A
62 There were subsequent emails, again, without mention of the conversation or the attribution of blame.
63 The evidence of Mr Espanosa about the meeting after the incident stands in some contrast to the evidence of Mrs Islam. It was put to Mrs Islam that she was confused about a meeting she said occurred within fourteen or so days prior to the incident, to that which occurred subsequently with Ms Jenny Tran. However, Mrs Islam did say that she made a number of telephone calls to the real estate agency about cracks in the wall prior to the incident. Mrs Islam did not give evidence that she had a meeting both shortly before, and then again after the incident with Ms Jenny Tran.
64 I do not suggest Mr Espanosa is anything other than an honest witness. However, I am of the view that he cannot actually recall details of the meeting with Ms Jenny Tran after the incident, nor what was said. I do not accept as reliable his evidence that Mrs Islam was present, nor that she said she had made telephone calls to the real estate agents about cracks in the wall.
The nature of the defects in the side brick wall
65 Given my findings rejecting the evidence of the various witnesses about complaints of defects in the side brick wall, it is necessary to analyse whether there were defects, and whether they could have been identified prior to the incident.
66 There are three possible types of defects identified in the side brick wall, aside from its inherent structural instability. They are a lean in the wall, cracks, and a gap at the street end of the wall, indicating it was not secured to any structure.
67 Mr Czarnota, counsel for the plaintiff, submitted the defendants ought to have called Mr Thong Le, a senior property manager of McDonald Real Estate, who, according to email correspondence with the landlords,[81] is likely to have carried out a more extensive pre-tenancy condition report. Mr Le would be “in as good a position as anyone to comment on the state and condition of the Wall, and the existence of any obvious or patent defects as at December 2015”.[82] As a result, I ought to infer, in accordance with the principles of Jones v Dunkel,[83] that his evidence would not have assisted the fourth defendant. However, as I am not satisfied there was any patent defect in the side brick wall later, in 2016, it is most unlikely any such defect was present in December 2015. In my view, the inference is not open.
[81]CB 173
[82]Plaintiff’s submissions at paragraph [38]
[83](1959) 101 CLR 298
68 The only evidence that there was a lean in the side brick wall was that of Mr Espanosa and Mrs Correa that, on the day of the incident, they observed the wall leaning towards Unit 4, which attracted them to make an inspection of the area.
69 Around the time they purchased the property, the side picket fence had a distinct bow or bend.[84] However, this was rectified with the removal of the vegetation, and the provision of a secured centre post. According to photographs taken after the side picket fence was repaired,[85] both the picket fence and the side brick wall appear relatively straight, and without any lean or other visible defect.
[84]Exhibit 7 – CB 787
[85]Exhibit 7 – CB 274
70 The only evidence of cracking observed in the side brick wall is that of Mr Nguyen and Mrs Islam. Mr Nguyen said he observed a large crack in that wall around March 2016. He claimed to have had a conversation with Mr Espanosa and Mr Islam about cracks and about the gap at the street end of the side brick wall. The evidence of Mrs Islam was that she observed cracks in the side brick wall which became greater over time, and within two weeks prior to the incident, the cracks were large. She claimed to have had a conversation with Ms Jenny Tran to that effect.
71 For the reasons given, I find the evidence of both Mr Nguyen and Mrs Islam in relation to what they observed as unreliable. Absent that evidence, there is no other evidence of any cracks, large or small, in the side brick wall prior to the incident until Mr Espanosa observed some cracks immediately before the wall fell. Again, photographs taken after the purchase of Unit 3 by Mrs Correa and her husband[86] do not, at least as can be observed over a distance between the photographer and the wall, reveal any cracks or anything else to suggest defects in the wall.
[86]Exhibit 7 – CB 274
72 I am not satisfied there is any reliable evidence to indicate there were cracks in the side brick wall such as to give an observer without any particular engineering or building expertise, concern for the stability of the wall. There may have been some relatively small cracks through the vertical or horizontal mortar course of the wall, but nothing to indicate that it might be unstable or might fall. Mr Janus said the cracks observed in the wall after its fall[87] are more likely to have been caused when the wall hit the ground.[88] Again, the evidence of Mr Espanosa and Mrs Correa is telling. Neither observed any problem with the wall, including any cracking, up until the time of the incident.
[87]As seen in exhibit 2
[88]T456, L29-30; T464, L5
73 I am not satisfied the clear problems with the front fence, which were photographed and documented in the report of Ms Monica Tran,[89] ought to have caused herself or the landlord to assume there may be some similar problem or defect with the side brick wall. It was not put on behalf of the plaintiff that that state of disrepair should have meant an inspection of all other exterior walls by a person with building or like expertise, was justified.
[89]Exhibit D1-H
74 On 24 February 2016, the surveyor of the local council sent an email to the landlords[90] concerning a complaint said to have been received about the state of disrepair of the front fence. The email states, in part:
“It is the owner’s responsibility to ensure that boundary fences are maintained and that no danger is caused to the public or adjoining owners. Therefore, we ask that you assess this problem and rectify it as soon as possible ... .”
[emphasis in original].
[90]Exhibit 33
75 That statement is advice as to the obligation of owners in relation to fences generally, rather than a direction to make an inspection of this particular property. I am not of the view this letter ought to have prompted the landlords to arrange an inspection of other fences.
76 The evidence of Mr Janus was that neither end of the side brick wall was secured to any structure. It had no support against lateral forces, be they vegetation, soil or wind. The centre post, earlier sunk to support the side picket fence, did not support the side brick wall. Mr Czarnota contended that there was a gap at the street end of the wall which was obvious from the photograph at Court Book page 275.[91] Such a gap, said Mr Czarnota, should have alerted the landlords, and particularly the real estate agents charged with making an inspection of peripheral boundaries, to that gap. That ought to have indicated that the wall was not secured at the street end and prompted an investigation by an appropriately qualified builder or handyman as to its stability.
[91]Exhibit 5
77 An examination of the photograph at Court Book page 275 would appear to show a small gap between the side brick wall and the front fence. It is not possible to say, from that photograph, whether that gap persisted through the single brick’s width or through the height of the wall. While such a gap may alert an engineer or builder to the prospect that the wall was not secured, I am of the view it is not something which would be noticed by an average observer nor a real estate agent, in the course of an inspection. An engineer or builder would know the importance of securing the wall at either end to resist lateral forces but an average observer would not be armed with that knowledge. A determination as to whether the side brick wall was fixed at either end would probably require a careful examination from both sides, and possibly the use of some tool or piece of equipment to run down the gap to check if there was any point of fixation. A real estate agent tasked with the obligation to inspect a property, would, in my view, make little of the gap as evidencing any instability in the wall.
78 Mr Czarnota submits a Jones v Dunkel[92] inference arises for the failure of the defendants to call the person who took that photograph. However, there is nothing to suggest the photograph was taken to highlight the gap. More likely, in my view, the photograph was taken as part of a range of photographs of Unit 4 at the time. No such inference arises.
[92]Supra
79 In all these matters, again, the evidence of Mrs Correa and Mr Espanosa is telling. Over the years before the incident, and assuming they would be in the area of the side brick wall regularly, neither had noticed cracks, gaps or problems with the wall up until 13 October 2016, and had not been alerted by anyone else to such issues. Even accepting Ms Monica Tran was a real estate agent tasked with making an inspection in June 2016, such an inspection involved checking for readily observable problems within Unit 4 rather than latent defects which might be observable by those with more technical knowledge.
Awareness and breach – First and Second Defendants
80 Mr Lin He gave evidence that in 2009, he purchased Unit 4 as an investment property. He has since purchased another eight investment properties. He has never lived at Unit 4, which has always been leased out.
81 On 14 July 2014, he signed a Management Authority. He appointed the fourth defendant to manage Unit 4.[93] He said he placed a “very heavy” reliance” on the real estate agent to undertake the leasing of Unit 4 and to manage that property.[94]
[93]Exhibit D1-F
[94]T496, L1-2
82 Mr He had only visited Unit 4 on a few occasions after he purchased it.
83 He was aware of an issue with the front fence, in that trees in the front garden area had caused damage to the fence. He relied upon the agents to provide information about this issue.[95] He was not aware of any problem with the side brick wall before the incident.
[95]T498, L19-20
84 Mr He accepted that any works to Unit 4 could not be carried out unless he had approved the scope and the cost of the work, save if they were urgent.[96]
[96]T511, L8-11
85 Mr He knew by December 2015 that the front fence was in a poor state of repair.[97] He was notified in February 2016 by SMS message from Ms Jenny Tran that the tenant had advised the front fence was falling down and there had been complaints from the neighbour.[98] In May 2016, Mr He was provided with various quotations to repair the front fence. By June 2016, after the condition report, problems with the front fence were again noted and photographs provided.
[97]T516, L1-5
[98]T538, L10-21
86 Mr He accepted he received the letter dated 24 February 2016 from a surveyor at the City of Greater Dandenong.[99]
[99]CB 1011; T539-540
87 Mr He accepted that the side brick wall was also a boundary fence.[100]
[100]T541, L4-6
88 Mr He accepted that when repairs to the property involved expending money, he did not act with urgency.[101] He was aware of the repair request forms completed by the tenant in 2016.
[101]T551, L10-14
89 Despite receiving the letter from the council, directed to repairs required of the front fence, the reference in that letter to boundary fences did not prompt Mr He to go to the property and inspect other fences.[102] This was because he was unaware of any issue with other boundary fences.
[102]T556
90 I accept the evidence of Mr He that he largely left the management of Unit 4 in the hands of the real estate agents. I accept he visited the property only rarely and that there had been no complaint nor report to him of any problem with the side brick wall.
91 It is clear that his response to repairs to the front fence was tardy and it took a long time before rectification work was undertaken. However, I am not satisfied that any problem with the front fence ought to have prompted him to make an examination of the side or other fences. Even had that been the case, I am not satisfied that a routine inspection by someone without particular expertise, even accepting Mr He and his wife owned a number of rental properties, would have revealed any defect.
Awareness and breach – the third fourth and fifth defendants
The evidence of Ms Jenny Tran
92 Ms Jenny Tran gave evidence that in 2015 and 2016, she was employed by the fourth defendant, McDonald Real Estate Springvale, as a property manager. She commenced with the business in November 2012. She managed between two hundred and two hundred and sixty properties at any one time, including Unit 4.
93 Mr He signed a Management Authority for Unit 4 on 14 July 2014.[103] A Lease was signed between Mr He and his wife as landlords, and Mr and Mrs Islam, as tenants, on 24 December 2015, for a period of one year.[104] The tenants would communicate with Ms Jenny Tran about any issues relating to Unit 4.[105]
[103]Exhibit D1-F
[104]CB 181-185
[105]T577, L18-21
94 Ms Jenny Tran produced the McDonald Real Estate “tenant files”.[106] This was a said to be a document which recorded communications from tenants.[107] If the tenant were to telephone about some issue, Ms Jenny Tran would record it on this document. Sometimes the document would contain extra notes.[108] On 11 February 2016, the document recorded:
“tenant inform front fence falling dowm (sic). comp[l]aints from neighbour. sms landlord called but no answer.”[109]
[106]D3-5-B
[107]T578, L7-10
[108]T580, L10
[109]CB 1014
95 Ms Jenny Tran said she first became aware of an issue with the front fence when she took over management of the property in 2015. She said the landlord was already on notice about the issue.[110] The agency received a repair request form in March 2016,[111] which made reference to the need to fix up the front fence. She advised the landlord and sought his instructions. She obtained quotations in respect of the front fence. One of the trades people the real estate agency used for repairs was Assured Property Services.
[110]T581, L7-9
[111]Exhibit D1-D
96 On 8 June 2016, there was an inspection by the real estate agency of Unit 4. It was a routine inspection, which were carried out every six months. It was undertaken by an employee of McDonald Real Estate, Ms Monica Tran. Ms Monica Tran compiled a detailed report.[112]
[112]CB 206-215
97 Ms Jenny Tran said that at no time prior to the incident had she been to Unit 4.[113] She had never heard of a tradesman, Mr Van Tan Nguyen.[114] After the inspection of June 2016, no-one told Ms Jenny Tran there was a problem with the side picket fence or the side brick wall. She first learnt of the problem after the incident, on 20 October 2016. On that day, she received a telephone call and went straight to the property to take photographs.[115]
[113]T587, L24-25
[114]T588, L2-4
[115]T588, L15-21
98 When she arrived, she noted the side brick wall had fallen down. Mr Ruben Espanosa, from Unit 3, came out while she was there and explained to her what had happened. He said that a week or two before, when he and his wife, Mrs Correa, were doing the gardening, they heard a sound. Mrs Correa went to Unit 4 to inspect the sound, and the brick wall fell on her foot.[116] She called Mr He straight away.[117] She did not speak to anyone other than Mr Espanosa on that day. He wanted to get the fence repaired. She said she would seek instructions from the landlord. She was at the property about fifteen minutes. She did not have a meeting with Mrs Islam. She could not recall any telephone call from Mrs Islam about a gate at the premises. There was no complaint made to Ms Jenny Tran about the state of the side brick wall, in particular, as to any crack.[118] She did not know of anyone in her office who may have gone to the property within two weeks before the incident.
[116]T589, L1-8
[117]T589, L14-15
[118]T590
99 After the incident, Ms Jenny Tran obtained quotations for the repairs to the side brick wall. Ultimately, the work was carried out.
100 Ms Jenny Tran said that when the inspection was carried out in June 2016 by Ms Monica Tran, if there is nothing in the report about the side brick wall, that meant there were no obvious signs that there was anything wrong.[119]
[119]T600, L12-16
101 Ms Jenny Tran denied there was a telephone call to the agency from the tenant about a lack of a front gate. She said she had a specific recollection that no such phone call had been made,[120] as she would have taken photographs and reported it to the landlord. Further, there was no log of any such telephone call recorded in the system.[121] Not every call was recorded, only those which involved “key activity” or “key aspects”.[122]
[120]T616, L29-31
[121]T617
[122]T618, L6-11
102 Ms Jenny Tran was not aware who telephoned her office to advise that the side brick wall had collapsed. She was unable to explain why the call in from someone about the fence having collapsed was not logged.[123] She denied any problem with the side brick wall was ever reported to the agency.
[123]T620, L30-31
103 Ms Jenny Tran denied that in the conversation with Mr Espanosa after the incident, that the tenant, Mrs Islam, was present, and said something to the effect “‘I told you about this fence, that it was falling, and I called twice to the real estate and left you a message there’”.[124]
[124]T622, L18-20
104 In addition to the tenant’s call log, emails, photographs and reports formed part of the file in relation to a property under management, and recorded the steps undertaken by the agent.[125]
[125]T626-627
105 Ms Jenny Tran was adamant that neither she, nor anyone from the real estate agency, received any complaint about any crack or defect in the side brick wall. She claimed she would have recalled if such a complaint had been made. However, given the large number of properties she was managing at the time, I am not satisfied her memory on this issue could be reliable.
106 Further, she said, had any such complaint been made, it would have been logged in the tenant files.[126] However, I am not satisfied that document or program would record incoming calls on every occasion. There was no reference for example, to the telephone call where she was advised that the wall had collapsed. Further, incoming calls would be received by a receptionist, and then directed around the agency. There would always be the prospect that a call was not recorded.
[126]Exhibit D3-5-B
107 I do, however, accept her evidence that she at no time attended Unit 4 before the incident. I further accept she did not have any conversation with Mrs Islam shortly before the incident.
The evidence of Ms Monica Tran
108 Evidence was given by Ms Monica Tran. She commenced working with the third defendant, iSell Group, in May 2016 as an assistant property manager. Part of her duties was to carry out routine residential property inspections.
109 On 8 June 2016, she carried out a routine inspection at Unit 4. She subsequently compiled a condition report as a result of that inspection.[127] Before the inspection, she walked down the driveway to the front door. There was a car parked in the driveway, and she walked to the right side of that car. She walked through the inside of the property, inspecting its condition, making notes and taking photographs. The tenant, Mrs Islam, spoke about the front picket fence which required repair, and trees in the front yard affecting sunlight into the front part of the house. At the time, Mrs Islam provided her with a “Repair Request Form”.[128]
[127]Exhibit D1-H
[128]Part of Exhibit D1-D
110 A condition report is carried out at the commencement of a tenancy, and takes about two hours; however, a routine inspection report is carried out each six months or so, and takes about fifteen or twenty minutes.[129] Ms Monica Tran took photographs of the front yard, including the front picket fence and trees.[130]
[129]T668, L28 – 670, L8
[130]Part of exhibit D1-H – CB 214-215
111 Ms Monica Tran accepted there was no mention of the side brick wall in the report, and it was not photographed. The tenant did not report any issues with the side brick wall. Otherwise, she would have referred to it in her report.[131] However, Ms Monica Tran did not agree she did not look at the wall.[132] She said that, in the course of a routine inspection, she would start off at the front of the premises “to have a look at both sides and just the perimeters and then I will just walk through at a standard property (sic)”.[133]
[131]T681, L24 – T682, L9
[132]T682, L16-19
[133]T667, L1-3
112 After she had made her inspection, Ms Monica Tran went to the front yard area and took the photographs as set out in the report. She then went to her car, which was parked in the street. When asked how she could recall inspecting the side brick wall, she said she started scanning the perimeters of the property as she walked up to the house.[134] She said there was nothing of obvious concern. She accepted she walked to the right of the car as she entered, and exited the same way. She said she looked at the side brick wall, although she could not recall going up and staring at it.[135]
[134]T689, L11-14
[135]T690, L8-10
113 She said she walked in to the space, of about a metre, between the side brick wall and the car.[136] However, she accepted that her view of the side brick wall could only have been from the front boundary line of the property.[137] When asked whether she could actually remember observing the side brick wall, or whether it was something that she would have expected to have done as part of her usual routine, she replied “I remember walking up to the house and the car being there”.[138]
[136]T690, L27-29
[137]T691, L8-11
[138]T691, L16-17
114 Ms Monica Tran thought that she had dealings with the landlord, Mr He, once or twice during 2016.[139] She could not recall anything of those dealings, aside from sending him the routine inspection report.
[139]T699, L8-10
115 When shown a photograph of the side brick wall[140] which showed a gap between that wall and the front fence,[141] Ms Tran accepted there was a gap there[142] but was uncertain as to whether, had she seen that gap, she would have recommended the owner would have a contractor look at it.[143] She said she would have noted a gap in the inspection report if it was obvious.[144]
[140]CB 275
[141]As per the evidence of Mr Nguyen
[142]T701, L9-11
[143]T701, L18 – T702, L3
[144]T702, L6-7
116 Ms Monica Tran said that it was standard practice for her to check the perimeter of a property in the course of an inspection.[145] She said she would look at the perimeter walls and check that they were in good condition. She said she would have done this at Unit 4. She had a direct recollection of this.[146] She said she was close enough to the side brick wall to identify any problems with it.[147]
[145]T703, L12-14
[146]T703, L15-24
[147]T704, L24-26
117 I am not satisfied Ms Monica Tran has any recollection of inspecting the side brick wall in the course of her routine inspection in June 2016. Her evidence that she could specifically recall this was quite unsatisfactory. When she was leaving the property, the best view of the side brick wall she could have had was from the front boundary. She was not close enough to see any defect in the wall.
118 Further, I am not satisfied that it was any part of her routine to make any type of significant inspection of the perimeter or perimeter walls of the property. I accept that if a matter was brought to her attention by the tenant, it would form part of her report. I further accept that if she detected any significant defect or issue with the property, likewise she would have noted it.
Awareness and breach – Legal principles
119 Part X of the Wrongs Act 1958, save in certain instances, applies to a claim for damages in negligence.
120 Section 48(1) provides that a person is not negligent for failing to take precautions against a risk of harm unless that risk is foreseeable; that is, a risk of which the person knew or ought to have known; and the risk was not insignificant; and in the circumstances, a reasonable person would have taken those precautions.
121 Section 48(2) relevantly provides that in determining whether a reasonable person would have taken precautions against a risk of harm, the Court should consider the probability that the harm would occur if care were not taken; the likely seriousness of the harm, and the burden of not taking precautions. An insignificant risk includes, but is not limited to, risks that are farfetched or fanciful.
122 Section 55 provides that there is no liability in negligence for harm suffered as a result of the materialisation of an inherent risk. An inherent risk is defined as something occurring that cannot be avoided by the exercise of reasonable care.
123 Part IIA of the Wrongs Act relates to the obligations and liability of occupiers. Section 14B(4) provides a number of considerations which must be taken into account in determining whether a duty of care has been discharged including, relevantly, the gravity and likelihood of probable injury; circumstances of entry onto the premises; the nature of the premises; the knowledge which the occupier has or ought to have of the likelihood of the persons being upon the premises; the ability of the person entering the premises to appreciate the danger, and the burden of the occupier in eliminating the danger. I do not find it necessary to determine whether, on the one hand, the occupier’s liability provisions ought to be applied in favor of the statutory code provided in Part X. In my view, the circumstances of this case do not require any particular determination as to which of the provisions apply.
124 Jones v Bartlett & Anor[148] was concerned with the liability of landlords for injury suffered by the son of tenants who walked through a plate-glass door. At the time of installation, the door complied with the appropriate Standards. Since that time, the standards had been upgraded, including requiring increased thickness and lamination of the glass in the door. As in the present case, the court in Jones[149] found that an inspection of the glass could not have been ascertained whether its thickness complied with the then current standards, unless that was undertaken by a person with building expertise.
[148](2000) 205 CLR 166 (“Jones”)
[149]Ibid
125 It was argued[150] that reasonable care required, prior to the commencement of the lease, that the premises be assessed by an expert who would determine that its construction fell short of the then current building standards. Gleeson CJ said:
“… There was nothing to suggest to the respondents that the house was defective or dangerous, or that, by reason of its age, or condition, it was hazardous to occupy. If, every time a lease is entered into, the landlord must have an expert assessment of the premises, it will ordinarily be the tenant who has to pay. That may be one reason why it is not common practice … .”
[150](Ibid) at 183
126 The Court said there may be an exception in the case of dangerous defects or those which might be prompted by the poor state of repair of a premises, including obvious defects.
127 Gummow and Hayne JJ said further:
“The diligence required to ascertain dangerous defects will not in the ordinary case require the institution of a system of regular inspection for defects during the currency of the tenancy. In Northern Sandblasting,[151] Kirby J said of a posited requirement of inspections of domestic electricity systems:
‘If correct in principle, it would require regular inspections against the risk of other perils, eg gas supply, floorboards, balustrades, etc. In the absence of evidence about the prevalence of, and need for, any such inspections of rented accommodation, there was no foundation for imposing such a duty on landlords leasing residential premises.’
Nor is there a requirement for the engagement of experts in each of the fields, such as electrical wiring, and glass fabrication and installations, where such risks of defects could, in the nature of things, be seen as a possibility.”[152]
[151]Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 394. Statements to similar effect were made at 343-344, per Dawson J; at 349, per Toohey J; at 370, per Gummow J
[152]Jones (supra) at 218-219
128 Kirby J noted that a landlord owed a duty not only to tenants, but also to a third party who may be injured as a result of a patent defect in tenanted premises. A landlord may discharge his duty by responding promptly to defects brought to his notice and that that duty may be ordinarily discharged by delegating inspection and refer for repair to a competent person. The court concluded that in the circumstances of the case, there was no obligation to arrange an expert inspection of the glass door.
129 In Ahluwalia & Ors v Robinson,[153] the New South Wales Court of Appeal said:
“… Jones v. Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk.”[154]
[153][2003] NSWCA 175
[154](ibid) at paragraph [23]
130 In the present case, I am of the view both the landlords and the real estate agents did owe the plaintiff a duty to take reasonable care in relation to the state of the premises to guard against the foreseeable risk of harm. The nature of that duty would not ordinarily require either the landlords or the agents to arrange for the premises to be inspected by a person with sufficient expertise in building and construction unless there was some aspect of the premises sufficient to alert them to a defect.
131 While the side brick wall did suffer a lack of structural integrity, that was not readily observable, save by a person with expertise in the building or construction field. To the extent there were cracks and a gap in the side wall, those defects were latent and not patent.
132 Accepting the real estate agents did have an obligation to inspect the state of the premises, such an obligation was focused upon two issues. The first was to ensure the tenants abided their obligations under the lease, including not to damage the premises, to keep them reasonably clean and used for residential purposes[155]. The second was to inspect the premises to ensure they were “maintained in good repair” as was the obligation of the landlords. In my view that obligation did not require the sort of detailed inspection of the boundary fences as would be likely to disclose the inherent instability of the side brick wall. Nor did it require them, absent any complaint of defects, to arrange for a tradesman with building expertise to make such an inspection.
[155]Exhibit D1-C – clauses 2 to 4
Conclusion
133 Tragically, the side brick wall standing between Units 3 and 4 was an inherently unstable structure. However, it had been in that state over a long period of time but without any obvious signs to the owners of Unit 3, the owners or tenants of Unit 4, or the real estate agents, of that instability.
134 In particular, I am not satisfied that there were any defects which could have been observed, including cracking, gaps or bows in the side brick wall.
135 In order to ascertain the defects and problems with the wall, it required the inspection of someone with some form of building or engineering expertise.
136 I do not accept as reliable the evidence of the witnesses that they observed cracks or a gap in the wall, nor that they made any report, either before or after the incident, to the real estate agents.
137 While I do not accept Ms Monica Tran made the inspection of the peripheral walls, including the side brick wall, prior to the incident, I am not satisfied that, even if it was a reasonable for her to do so, such an inspection would have detected any signs that the wall was unstable.
138 I feel sympathy for the plight of Mrs Correa. She was a person doing no more than inspecting a lean in the wall because she was concerned for the safety of her neighbour’s children. She suffered a significant injury which has had a very substantial impact upon her life. Had I been called upon to determine the issue, I would have found her conduct in walking along the wall did not amount to contributory negligence.
139 Nonetheless, the law as I appreciate it, does not require either an owner or managing real estate agent to arrange an inspection of such a wall by someone sufficiently qualified to detect its inherent instability. Even accepting the real estate agents had the obligation to inspect the premises on a regular basis, the nature of the defects in the side brick wall were latent, and not patent, and would not have been observable to a real estate agent making an inspection of the premises as the lease required. The first that was known about a problem with the wall was when Mr Espanosa observed it leaning on the day of the incident.
140 The plaintiff’s case is not made out. There should be judgment for the defendants. I shall hear from the parties as to costs.
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