David HOLLYHEAD v M.N.G Investments Ltd ACN: 105 211 630 t/as Australian Temporary Fencing - Canberra - [2010] ACTSC 34

DAVID HOLLYHEAD v M.N.G INVESTMENTS LTD ACN: 105 211 630 t/as AUSTRALIAN TEMPORARY FENCING - CANBERRA & ORS
[2010] ACTSC 34 (31 March 2010)

NEGLIGENCE – personal injury – temporary fence – concrete block protruding on to public footpath – injury to pedestrian at night – installer of fence 70% liable – builder/occupier of fenced land 30% liable – public authority responsible for footpath not liable

Civil Law (Wrongs) Act 2002, s110

Johnson v The Australian War Memorial (2005) ACT SC 122
Darlington Futures Limited v Delco Australia Proprietary Limited (1986) 161 CLR 510
Roads and Traffic Authority of New South Wales v Palmer [2003] NSWCA 58

EX TEMPORE JUDGMENT

No. SC 175 of 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 31 March 2010

IN THE SUPREME COURT OF THE       )
  )          No. SC 175 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:DAVID HOLLYHEAD
Plaintiff

AND:M.N.G INVESTMENTS PTY LTD
ACN: 105 211 630 t/as AUSTRALIAN TEMPORARY FENCING - CANBERRA
First defendant

VOGUE CONSTRUCTIONS PTY LTD
ACN: 104 777 335

Second defendant

AUSTRALIAN CAPITAL TERRITORY

Third defendant

ORDER

Judge:  Master Harper
Date:  31 March 2010
Place:  Canberra

THE COURT ORDERS:

Judgment for the plaintiff against the first and second defendants in the sum of $55,000.00

Judgment for the first defendant against the second defendant for $16,500.00

Judgment for the second defendant against the first defendant for $38,500.00.

Judgment for the third defendant.

The first and second defendants pay the plaintiff’s costs, not including any costs solely referable to the plaintiff’s claim against the third defendant.

The first defendant pay to the second defendant an amount equal to 70% of the plaintiff’s costs pursuant to order 5.

The second defendant pay to the first defendant an amount equal to 30% of the plaintiff’s costs pursuant to order 5.

The second defendant pay the third defendant’s costs of its claim for contribution from the third defendant.

The plaintiff pay the third defendant’s costs not including the costs referred to in order 8.

I think I can give my reasons immediately, and they won’t be as delicately crafted as if I reserved and went away and dictated them and had a chance to proof-read them, but briefly, there are a number of issues about which there is not any disagreement.
It is clear that the first defendant, at the request of and by agreement with Community Housing Canberra Limited, installed a fence around the block of 7 Banner Street, O’Connor, which at that stage had a house on it, for the purpose of securing the block and preventing unauthorised entry onto the block during the time before redevelopment was to take place, and that happened in August 2005.
Having heard evidence from Mr Chittick, an employee of the first defendant, the only evidence about what happened at the time of the installation of the fence, I am of the view that, more probably than not, he installed the fence in such a way that its south-eastern corner protruded slightly onto the footpath. At that approximately right-angled corner of the fence, there was an oblong concrete block covered in blue plastic coating to anchor the two fence panels, which created that corner. I find that more probably than not, the concrete block was placed in the position which is shown on the photographs in evidence, that is, a position angled at 45 degrees to the footpath and protruding onto the footpath by, doing the best I can from the photograph, something between 20 and 30% of the width of the footpath.
It is apparent that almost the whole of the concrete block was on the concrete footpath and that the fence itself, both panels of the fence, also protruded onto the footpath, but that there was beyond the fence, protruding onto the footpath, about half of the concrete block, angled at about 45 degrees to the footpath. I am satisfied that the concrete block was in that position on 10 February 2006, when the plaintiff was proceeding south along Banner Street on his way home from the All Bar Nun at the O’Connor shops.
There was some issue between the parties as to the route followed by the plaintiff from the O’Connor shops and as to what he had been doing earlier on that evening. I accept his evidence that he had been shopping at the Dickson shopping centre, where he had had two full-strength schooners of beer with the man he was then sharing a house with, Mr McKinnon. I accept that they later attended at the All Bar Nun, where the plaintiff had another schooner of full-strength beer, and three schooners of light beer. Mr McKinnon stayed on at the All Bar Nun to watch a rugby match, and the plaintiff decided to go back to his house in Faunce Crescent, O’Connor, on foot. I accept that the plaintiff, in an endeavour to identify a short cut home, went some distance out of his way, which took him at some point to the corner of Tate Street and Banner Street, and that he turned into Banner Street, recognising its name and realising that it would take him home.
His evidence is that for some of that journey home he ran or jogged, but by the time he was proceeding along Banner Street he was walking briskly. I am not sure that it is necessary for me to make a specific finding of fact about whether he was in fact jogging or walking briskly, but it seems to me to make little, if any, difference.
As he proceeded south along Banner Street, he passed the house, by then under construction, at 7 Banner Street. I am satisfied that his foot struck the concrete block on the south-eastern corner of number 7, and that that caused him to lose his footing and fall over onto the footpath and suffer injuries including a broken leg.
I am satisfied that in the vicinity of number 7 Banner Street, the street lighting was not bright enough for him to have seen the block, and I am satisfied that the moon was shining on a clear night from an angle such that the top of the temporary fence along the front of number 7 was just visible by moonlight, but such that the concrete block itself was in the shadow of a skip near the front corner of the block. I am satisfied that the plaintiff did not see the block before he tripped on it, and that his failure to see it was not because of any failure on his part to keep a proper lookout.
In November 2005 the block of land had been taken over by the second defendant, Vogue Constructions Pty Ltd, which had entered a contract with Community Housing Canberra Ltd, to demolish the house and to build a new house. Vogue Constructions signed a document headed “Transfer of hire” in relation to the temporary fence, and also a contract with the first defendant, by which it assumed the role of lessee of the fence.
By the time of the plaintiff’s fall, Vogue Constructions had had control of the site for more than two months and must be taken to have been well aware of the position of the concrete block on the footpath. I am satisfied that the first defendant, in erecting the fence, owed a duty of care to pedestrians, including pedestrians who might be walking briskly or jogging at night past the house, and that by positioning the block partly on the footpath, where I am satisfied it would have been clearly visible in daylight hours, but as is clear from the events of the night, not visible at night, the first defendant committed a breach of its duty of care to pedestrians, including to the plaintiff. I am also satisfied that the second defendant, in taking over control of the site as builder, assumed, or came under, a duty of care to pedestrians such as the plaintiff, and that the second defendant could readily have altered the position of the fence so as to move the block from the footpath and on to the leased land. I am satisfied that its failure to do so amounted to a breach of its duty of care to the plaintiff.
Hence, I find that the first and second defendants were both negligent.
The plaintiff also sues the Australian Capital Territory as third defendant. The plaintiff’s case against the Territory is that it had care and control of the footpath, and that it failed to inspect the footpath and the general area in circumstances where if it had done so, it could have directed the repositioning of the concrete block and would have done so.
I can accept without making a specific finding that if the Territory, through one of its employees or agents, had carried out an inspection of the area, a direction would have been given to move the block and would have been complied with, and that the plaintiff would not have suffered the injuries he did. However, it is necessary for the plaintiff to establish that the Territory was under a duty to conduct such an inspection, and that it should have done so but failed to do so.
Mr Piper, a complaints officer with ACT Roads, an instrumentality of the Territory Government, gave evidence about budgetary constraints within his area. His evidence was that ACT Roads was responsible for such inspections as took place. I accept that an inspection of the area would have been conducted by ACT Roads if any complaint by a member of the public had been made about the hazard. I accept his evidence that there was no such complaint.
Mr Piper’s evidence that there are more than 150 suburbs in Canberra, and that the suburb of O’Connor is not one of twenty-six suburbs where it is Government policy to conduct what he described as proactive inspections. Those suburbs were selected by reference to expected high pedestrian usage, or other factors such as the proximity of aged care homes. His evidence was, and I accept, that O’Connor was not a suburb where such inspections were carried out in the absence of a complaint.
Counsel for the plaintiff submits that this was not good enough and that the Territory should have inspected this street and this footpath during the period of about eight months when the temporary fence and the concrete block were in position. I am not satisfied that that is so. The Civil Law (Wrongs) Act 2002 contains provisions in relation to claims against public authorities other than those arising out of motor vehicle or work-related injuries. S 110 provides, inter alia, that the court is to apply specified principles in deciding whether such an authority has a duty of care, or has breached its duty of care. These include a principle that the general allocation of the resources by the authority may not be challenged.
I accept that if there had been a thorough inspection of Banner Street, O'Connor, in the months prior to 10 February 2006 this hazard would probably have been identified and removed. However, it seems to me that there was nothing about Banner Street, O'Connor which would have placed it in any different position to any other street or footpath in any suburb in Canberra. In those circumstances it appears to me that the plaintiff's submission is tantamount to a submission with the Territory was under a duty to inspect every footpath in every street in every suburb of Canberra once every six months. It is only if a regime of that kind had been in place that one could be confident that this hazard would have been identified and removed.
The Court is not in a position to make a finding that there was anything about the Territory's regime of inspection which was capable of amounting to a breach of the duty of care which the Territory admittedly owes to all pedestrians on all of the streets and footpaths for which it bears responsibility. The plaintiff has not made out any case against the Territory.
There will accordingly be judgment for the plaintiff against the first and second defendants for the agreed amount of $55,000 and there will be judgment for the third defendant, the Territory. There are claims for contribution and indemnity between the first and second defendants. I would find if it were not for the existence of a contract between them containing a provision which is argued by the first defendant to entitle it to a complete indemnity from the second defendant, that the first defendant, which put the hazard in place, was 70% to blame for the plaintiff's injuries and the second defendant, which had control of the building site for some weeks and should have identified and removed the hazard, 30$% to blame.
Counsel for the first defendant submits that I should afford his client a complete indemnity against the second defendant, the building contractor, because of the terms and conditions of the written contract between them. Those terms and conditions were set out on the back page of a single sheet which represented the contract and all of its terms. It relevantly included two clauses which I will set out:
(9) Liability for damage to leased materials, other property and personal injuries.
The lessee is liable for all damages or loss including consequential loss whether caused by the lessee or any other party arising from any accident or act of any and every nature whatsoever related to the leased materials. The lessee agrees to hold the lessor harmless and free from any and all liability of any and every nature whatsoever arising out of the use, construction, storage, maintenance or transportation of the leased materials.
(10) Indemnity.
The lessee agrees to indemnity and keep indemnified and save harmless the lessor and the lessor's servants and agents from all damages, suits, actions, claims or demands of every description whatsoever, and howsoever arising either directly or indirectly from the use, maintenance, transport, installation and operation of the materials or otherwise and whether resulting from the negligence of the lessor, its servants or agents or otherwise.

Counsel for the first defendant relies on principles which I summarised in Johnson v The Australian War Memorial (2005) ACT SC 122 at [74] to [78]. Those principles included the statement by the High Court in Darlington Futures Limited v Delco Australia Proprietary Limited (1986) 161 CLR 510 as follows:
The interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears, including the nature and object of the contract, and where appropriate construing the clause contra proferentem in case of ambiguity.

I went on in that case to refer to a number of other judgments of this Court, which I set out in paragraph [76] of the judgment, in relation to which I said:
The indemnity clauses in each of those cases were in different terms and none of the decisions were precisely on point but one could distil from them a general proposition that an indemnity clause will not generally be interpreted to permit a complete indemnity in favour of a principal contractor where the principal contractor has, itself, been guilty of negligence grounding a direct liability of the plaintiff in the absence of express words.

I referred to a decision of the New South Wales Court of Appeal, Roads and Traffic Authority of New South Wales v Palmer [2003] NSWCA 58, where that proposition had been approved.

In the present case it might be said that clause 10 of the terms and conditions of the contract specifically made the indemnity applicable whether or not the claim resulted from the negligence of the lessor, that is the first defendant. I note, however, that clause 9, the heading of which makes it clear that it is applicable to claims for personal injury, does not include any such specific words. There is an apparent inconsistency between clauses 9 and 10 which I find is best resolved by construing clause 9 as applicable to claims for property damage and personal injury, and clause 10 to other claims not covered by clause 9.
In those circumstances I find that the terms and conditions, which were imposed by and drafted by or on behalf of the first defendant, should be construed contra proferentum, that is, in the case of an ambiguity, against the interests of the first defendant and more favourably to the interests of the other party to the agreement. I find that the second defendant is not liable to indemnify the first defendant in respect of the first defendant's liability to the plaintiff. In those circumstances there will be judgment on the contribution claims for the first defendant against the second defendant for 30% of the amount recovered by the plaintiff and judgment for the second defendant against the first defendant for 70% of that amount.
(Following submissions by counsel in relation to costs) The plaintiff should have his costs against the first and second defendants, but not including the costs of his claim against the third defendant. The plaintiff must pay the third defendant’s costs. The costs of the contribution and indemnity claims between the parties will follow the event.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 20 April 2010

Counsel for the plaintiff:  Mr SM Whybrow
Solicitors for the plaintiff:  Maliganis Edwards Johnson
Counsel for the first defendant:  Mr WL Sharwood
Solicitors for the first defendant:                 Sparke Helmore
Counsel for the second defendant:                Mr FMG Parker
Solicitors for the second defendant:             DibbsBarker
Counsel for the third defendant:                   Mr SH Pilkinton
Solicitors for the third defendant:                ACT Government Solicitor
Date of hearing:  29, 30 & 31 March 2010
Date of judgment:  31 March 2010