Dunmall v O'Sullivan [No 6] - [2014] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUNMALL -v- O'SULLIVAN [No 6] [2014] WADC 61

CORAM: O'NEAL DCJ

HEARD: 2-6 DECEMBER 2013 & 20 FEBRUARY 2014

DELIVERED : 9 MAY 2014

FILE NO/S: CIV 232 of 2006

BETWEEN: GEOFFREY DUNMALL
Plaintiff
AND
MARIE O'SULLIVAN
First Defendant
TERRENCE ALLDEN WALSH
Second Defendant
SHIRE OF MURRAY
Third Defendant

Catchwords:

Torts - Negligence - Balcony collapse - Scope of duty of care of home owner

Torts - Negligence - Balcony collapse - Causation - Role of ungalvanized bolts in collapse - Duty of care of builder

Torts - Negligence - Balcony collapse - Faulty design approved for building licence - Role of local authority in granting building licence - Duty of care - Causation - Turns on own facts

Legislation:

Builders' Registration Act 1939 s 374, s 401 s 401A
Civil Liability Act 2002
Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947 (WA) s 7
Local Government Act 1939 s 374
Occupiers Liability Act 1985 s 5
Uniform Building By-Laws 1974 pt 41

Result:

Plaintiff's claim against first defendant dismissed
Judgment for the plaintiff against the second and third defendants
Second defendant's claim for contribution and indemnity against the first defendant dismissed
Second defendant's claim for contribution and indemnity against the third defendant allowed
Third defendant's claim for contribution and indemnity against the first defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr B P Wheatley
First Defendant            :     Mr D R Clyne
Second Defendant        :     Ms K J Levy (2 - 6 December 2013)
Third Defendant           :     Mr J Eller

Solicitors:

Plaintiff:     Mossensons
First Defendant            :     DLA Piper Australia
Second Defendant        :     Kitto & Kitto & Danaghers (20 February 2014)
Third Defendant           :     John Eller

Case(s) referred to in judgment(s):

Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Voli v Inglewood Shire Council (1963) 110 CLR 74

O'NEAL DCJ:

Introduction

The plaintiff, Geoffrey Dunmall and his wife have been friends of the first defendant Marie O'Sullivan for about 38 years. In 2004 they all lived in South Yunderup. Both houses were in sight of the canal, near to Peel Inlet, and fairly close to the sea. The first defendant lived in a two storey house constructed in 1983 that featured a balcony,10 m long and 2.4 m wide (or deep), attached to the upper storey. The balcony overlooked the canal.
On New Year's Eve, 31 December 2004, Mrs O'Sullivan entertained a number of her friends, including the plaintiff and his wife, at her home at 12 Kiap Road, South Yunderup.
Shortly before midnight the plaintiff followed two other guests out onto the balcony. The balcony should have had the capacity to accommodate the weight of about 50 people or perhaps more. However, as soon as the plaintiff stepped onto the balcony it collapsed, carrying the three guests 3 m to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WADC 61
Decision Date: 9 MAY 2014

CaseChat Overview and Summary

In the case of Dunmall v O'Sullivan [No 6], the plaintiff sought damages for injuries sustained as a result of a balcony collapse at a property in South Yunderup. The property, originally bare land, was developed into a two-storey residence with a balcony extending along the width of the house's back. The property was developed based on plans and specifications prepared by Smithin & Nicholson Architects, which specified the use of galvanized bolts for fastenings and high-quality timber for structural elements. The building licence was issued by The Shire of Murray, which had received the plans and specifications prepared by the architects. The plaintiff's injury resulted from the collapse of the balcony, which occurred when the plaintiff and another individual were standing on it.

The legal issues in this case centred on the duty of care owed by the various parties involved in the construction and approval process of the property. The court had to determine whether the home owner, the builder, and the local authority owed a duty of care to the plaintiff that was breached, leading to the collapse of the balcony. A key issue was the role of the ungalvanized bolts in the collapse and whether the local authority's approval of the plans and specifications constituted a breach of duty. Additionally, the court examined whether the architects' specifications were correctly interpreted and whether the local authority's approval of the plans and specifications was negligent.

The court found that both the second and third defendants were liable for the plaintiff's injury. The home owner and the local authority were held to have breached their duties of care by failing to ensure that the balcony was constructed according to the specifications provided, which required the use of galvanized bolts. The court found that the ungalvanized bolts played a significant role in the collapse of the balcony. The local authority's approval of the plans and specifications, which did not specify the use of galvanized bolts for the balcony, was also found to be negligent. The court held that the local authority should have ensured that the plans and specifications complied with the relevant building codes and standards.

The court ordered that the second and third defendants pay damages to the plaintiff for the injuries sustained as a result of the balcony collapse. The court also indicated that it would hear submissions on the issue of contribution from the second and third defendants and on costs from all parties involved.

Orders

Orders of the court

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Background

Background to the litigation

Background In early 1983, a Mr Alexander MacNaghten owned the property described as Town Lot 320, in the District of South Yunderup, in the Shire of Murray. From the documents tendered at trial it would appear that until 1983 Town Lot 320 was bare land. This property was later to become No 12 Kiap Road. It also appears that in 1982 Mr MacNaghten and someone described as 'V Pay' engaged Smithin & Nicholson Architects of Dalkeith Western Australia. Smithin & Nicholson prepared a set of plans (the Plans) and a set of specifications (the Specifications) for a 'proposed residence at lot 320 Kiap Road, South Yunderup'. On 2 February 1983 Mr MacNaghten applied for a building licence to construct a new two storey brick and tile dwelling on lot 320. The estimated value was $50,000. In the line of the application where the builder's name should have been disclosed someone has hand printed in, 'Subject to results of tender'. At some point in the process prior to 2 March 1983, the third defendant, The Shire of Murray, received a set of the Plans and Specifications in connection with the proposed development prepared by Smithin & Nicholson. The Plans show a two storey, three-bedroom-house. There is a brick paved verandah facing the canal at ground level. Above that on the level of the first floor is the balcony, running 10 m along the width of the back of the house. The elevations appear to show that the deck of the balcony is slightly less than 3 m above the ground below. The document containing the Specifications is also labelled 'Proposed Residence at Lot 320 Kiap Road, South Yunderup, for V Pay and A MacNaghten'. The cover sheet and the contents of a page entitled 'Information to Tenderers' suggests that the architect intended that these Plans and Specifications would form part of a request for tenders and in due course a contract for the construction of the house. Section 'G' of the Specifications is entitled 'Carpentry'. Under the subheading 'General' the document advises, 'Timber and workmanship shall conform to AS 1684 Light Timber framing code, unless otherwise specifically stated. All roofing timbers are based upon F14 or better and shall be selected from WA hardwoods. All external timbers and stud walls shall be Jarrah F11 or better'. Under the subheading 'Fastening', the Specification says, 'all fastenings throughout shall be galvanized. All bolts, unless otherwise shown shall be 10 mm cup heads with washers and nuts housed in (with a wood bit of washer size) where visible. Trip L grip fastenings shall be used in preference to nailing where practicable. All wall plates shall be bolted to walls at 900 centres using a 10 mm diameter tiger bolt or similar expansive fixing'. Section D of the Specification deals with 'Structural Steelwork'. The subsection 'Rustproofing' allows the use of 'cadmium plated' bolts in circumstances where the completed steelwork will be protected from 'outside weather conditions'. According to one of the expert witnesses who gave evidence, Mr Trevor Saleeba, an architect, section G provides the relevant specifications for the carpentry work and fixings, including the balcony, not section D. That opinion, given without objection, in fact coincides with what appears to me to be the proper construction on a plain reading of the two sections.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion It follows that in my view the second and third defendants are liable for the injury suffered by the plaintiff and I so find. No submission was made at trial by either the second or third defendant about relative degrees of contribution. That was understandable in the context of then unknown outcome. I will hear from the plaintiff and the second and third defendants with respect to the issue of contribution and from all parties in due course with respect to costs.

Ratio Decidendi

Legal Principle Established

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