Fernandez v Villaneuva - [2004] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FERNANDEZ -v- VILLANEUVA & ANOR [2004] WADC 32

CORAM: DEANE DCJ

HEARD: 24 SEPTEMBER 2003

DELIVERED : 4 MARCH 2004

FILE NO/S: CIV 2283 of 2002

BETWEEN: RAMONA FERNANDEZ
Plaintiff
AND
VICTRIANO VILLANEUVA
CORAZON VILLANEUVA
Defendants
EUGENE KING
First Third Party
LINDA KING
Second Third Party

Catchwords:

Appeal from Deputy Registrar - Directions hearing for third party directions - Basis of third party notices - Whether defendants obliged to prove their case against third parties in order for directions to be made - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     Mr G M Rattigan
Defendants:     Ms D M Templeman
First Third Party           :     Mr V Dangubic
Second Third Party       :     Mr V Dangubic

Solicitors:

Plaintiff:     G M Rattigan & Associates
Defendants:     Minter Ellison
First Third Party           :     Julienne Penny & Associates
Second Third Party       :     Julienne Penny & Associates

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

Australian Turf Industries Pty Ltd v Dalet Pty Ltd [1998] WASCA 311
Birmingham & District Land Co v London & North Western Railway Co (1886) 34 Ch D 261
Eastern Shipping Co Ltd v Quah Beng Kee [1924] AC 177
Hahn v Conley (1971) 126 CLR 276
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Heard v New Zealand Forest Products Ltd [1960] NZLR 329
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Mathews v United States Department of Defence [1999] NSWSC 1141
Pioneer Concrete (NT) Pty Ltd v Watkins Ltd (1983) 48 ALR 365
Robertson v Swincer (1989) 52 SASR 356

Case(s) also cited:

Andrews v Nominal Defendant [1963] NSWR 359
Austral Pacific Group Limited (in liq) v Airservices Australia [2000] HCA 39
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Barclays Bank v Tom [1923] 1 KB 221; [1922] All ER 279
Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665
Commercial Developments Pty Ltd v Mercantile Mutual Insurance Ltd (1991) 5 WAR 208
Le Lievre v Gould [1893] 1 QB 491
Miller v Taylor & Curran [1951] VLR 421
Niven v Grant (1903) 29 VLR 102
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
Owners Strata Plan 30889 v Perrine [2002] NSWCA 324
Public Transport Commission (NSW) v Perry (1977) 137 CLR 107
Re Burford [1932] 2 Ch 122
Stannus v Graham (1994) A Tort Rep 81-293
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Unsworth v Commissioner of Railways (1958) 101 CLR 73
Wilkinson v Law Courts Ltd [2001] NSWCA 196

DEANE DCJ: This is an appeal by the defendants from a decision of a Deputy Registrar of this Court and is therefore a hearing de novo; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28. It is helpful to consider a brief chronology of the history as it relates to an application for third party directions. The defendants filed a third party notice in October 2002 and served it upon both of the third parties. After this time the defendants filed a defence. A directions hearing was held in January 2001 at which time the solicitors for the defendants were advised that the second third party had entered an appearance. The defendants were directed to apply for an Order 19 directions hearing within seven days. Thereafter the defendants filed a chamber summons for third party directions, which came on for hearing before a Deputy Registrar in early February 2003. The matter was then adjourned to a special appointment for third party directions. At that hearing in April 2003 the Deputy Registrar ordered that;
1.each of the third party notices be dismissed;
2.the defendants pay the plaintiff's and the third parties' costs of the application; and
3.the defendants pay the third parties' costs of the third party proceedings.
It is from those orders that the defendants now appeal.
The background to the action relates to a personal injury allegedly sustained by the plaintiff whilst she was visiting the defendants' residence at 17 Sandy Place, Warwick, on 24 March 2001. The plaintiff is an elderly woman who is normally resident in the Philippines, but at that time she was visiting one of her daughters, Mrs King, the second third party, and Mrs King's partner, Mr Eugene King, the first third party in Australia. On the date in question the plaintiff, along with Mr and Mrs King, were invited to attend a social function at the defendants' residence, in company with other persons who included another of the plaintiff's daughters.
It would seem that while attending this gathering the plaintiff was taken on a tour of the house in company with her daughter, Mrs King, and her other daughter. In the course of this tour it is alleged that the plaintiff was in a room on the upper floor and at one point was descending the stairway. Whilst moving from one step to another she lost her balance and fell to the floor striking her head and injuring herself. It is not necessary for the purposes of this application to canvas in detail the injuries allegedly sustained by the plaintiff as a result of the fall.
In a statement of claim filed on 1 August 2002 the plaintiff alleges a general lack of care on the part of the defendants and whilst a variety of particulars of negligence are provided, they basically fall into two main categories. There is an allegation of a failure to provide a suitable hand rail and warn the plaintiff of this. Then there are alleged failures to ensure that pale coloured tiles on the stairwell or stairway treads were clearly delineated from each other and from other floor surfaces, a failure to provide slip resistant walking surfaces, an allegation that the defendants' permitted debris and floor cleaner to accumulate and remain on the stair treads and a failure on the part of the defendants to provide or advise the plaintiff to obtain assistance when descending the staircase.
The defendants therefore allege a failure to warn or give assistance to the plaintiff and failure to keep the premises, in particular the stairwell, in an acceptable state that did not expose the plaintiff to injury. The defendants accept that the state of the premises falls within their control but they argue that warning or assistance could equally have been provided by the third parties. It is the plaintiff's argument in part that the defendants knew or ought to have known that the plaintiff was a frail and elderly woman with poor eyesight and little or no knowledge of the premises and that in these circumstances there was an obvious likelihood of injury occurring to the plaintiff.
The defendants deny that the plaintiff was injured by reason of their negligence. Despite this they contend that if the defendants knew or ought to have known of the plaintiff's frailty then both the third parties by virtue of their close relationship to the plaintiff would or should similarly have been aware of these matters.
It is for this reason that the third party notices claim contribution or indemnity on the ground that the third parties were negligent in failing to provide necessary assistance and warning to the plaintiff in the circumstances that prevailed or in the alternative, failed to warn the defendants of the plaintiff's alleged frailties so as to ensure that she did not suffer injury or damage. This allegation it is argued, will be expanded upon in the third party statement of claim should the matter proceed to that point.
Whilst this is a hearing de novo it is helpful in the context of this appeal to note the basis upon which the Deputy Registrar dismissed the third party notices in that he was of the view that there is an onus on the defendants to plead in the third party notices, or alternatively to adduce evidence, to suggest that a special relationship existed between the plaintiff and both the first third party and the second third party which was of such a nature to base an action in negligence.
On the material before him the Deputy Registrar concluded that the defendants had failed to discharge that onus. In doing so the defendants argue that they have been deprived of the opportunity to plead their claim against the first and second third parties and this it is said is wrong in law. The defendants' position is that the onus they bear to provide sufficient particulars of their claim to the first and second third parties is discharged in their statement of claim against the third parties and that at this point in time all that they are required to provide is a general endorsement in the third party notices.
In addition the defendants argued that in any event without an order for third party directions they could not have filed a pleading; Civil Procedure Western Australia at [19.1.2]. Whilst the defendants argue that they have stated the nature and grounds of the claim to be determined and the extent of the relief sought, the third parties take issue with this and say that the defendants have not established that they are entitled to pursue contribution or indemnity from the third parties as claimed; Birmingham & District Land Co v London & North Western Railway Co (1886) 34 Ch D 261.
The defendants deny an alleged failure in installing what might broadly be described as safety devices on the stair or on the steps in the premises thereby exposing the plaintiff to possible risk of injury. They deny the plaintiff's alleged frailties and point out that if these existed then it is unlikely that the plaintiff would have been able to utilise a hand rail to prevent her fall, even if one had been provided. In essence the defendants also claim that the first and second third parties were familiar with the premises, having assisted the defendants to move into the home and further that the defendants and the first and second third parties had a degree of ongoing contact since that time.
As I understand the defendants' argument relevant to the alleged duty of care owed by the first and second third parties, it is that the familiarity with the premises and the fact that there were steps separating the upper and lower levels of the house in combination with their knowledge of the plaintiff's alleged frailties, placed the third parties in a position where they owed a duty of care to the plaintiff to protect her from the foreseeable danger of falling down the steps and injuring herself in some way.
It is claimed that by taking the plaintiff to the house on the day in question the first third party, being the plaintiff's son‑in‑law, behaved so as to create a foreseeable risk of injury to the plaintiff; Robertson v Swincer (1989) 52 SASR 356 at 359-60; Hahn v Conley (1971) 126 CLR 276 at 284‑285.
Further it is said that the second third party, being the plaintiff's daughter, in assisting or guiding the plaintiff on the tour of the house or premises behaved in a way which positively reduced the plaintiff's independence and gave rise to a duty of care on the part of the second third party; Heard v New Zealand Forest Products Ltd [1960] NZLR 329 at 361. This it is said created a closer relationship between the plaintiff and second third party than as existed between the defendants as occupiers of the house and the plaintiff as their invitee.
As a result it is argued that the second third party, Mrs King, owed a duty of care to the plaintiff to avoid the foreseeable risk of injury to her and further by positioning herself near the plaintiff at the top of the steps as well as generally guiding the plaintiff around the house on the tour, Mrs King, foresaw a risk of injury to the plaintiff; Mathews v United States Department of Defence [1999] NSWSC 1141 par 23.
Although it was conceded on behalf of the plaintiff that she would not usually have an involvement in an application of this nature nonetheless counsel for the plaintiff adopted the position that the defendants' appeal should be dismissed. Counsel for the plaintiff submitted that neither of the third parties had a contractual liability in relation to the occupiers/defendants and that there was no basis for suggesting that an occupier of premises delegates a duty to any third party when that third party is, for example, conducting someone in the plaintiff's position on a tour of the premises.
No duty is created according to counsel for the plaintiff simply because an individual is able to foresee a likely risk of injury to a third party through that third party's lack of assumption of control even where not a personal risk would be incurred to the third party in so doing. The position adopted in counsel's argument was that any act of a third party must be regarded as a new and independent cause of action.
In referring to Hahn v Conley (supra) counsel for the plaintiff submitted that the only duty owed by either the first or second third party to the plaintiff was a duty of care not to cause a direct or intentional injury to the plaintiff. Counsel expanded upon this argument by pointing out that the plaintiff had no knowledge of the extent of either of the third parties familiarity with the premises which in any event the defendants denied were unsafe. The difficulty with this material, even if it is correct, is that it is not in response to any specific pleading or any evidence which might eventuate.
Furthermore, counsel rejected the concept that there is any rule of law which gives rise to a situation whereby in taking the plaintiff to the premises the first and second third parties acted so as to create a foreseeable risk of injury to the plaintiff which apart from taking the plaintiff to the location would not have arisen. Again this is a difficult argument to assess in a vacuum.
Further the plaintiff's position is that there was no undertaking, conduct or guiding of the plaintiff around the premises of the house during the tour which could have created any legal relationship or duty of care on the part of the first or second third parties to the plaintiff. Nor could it be said that the duty of care owed by the occupiers/defendants was in any way abrogated in those circumstances. It is conceded that both the third parties owed a general duty of care to the plaintiff to avoid a foreseeable risk of injury to her but that duty of care was not confined to the plaintiff but rather extended to all of those persons present at the premises at the time in question.
In relation to the issue of indemnity the plaintiff's position as submitted by her counsel was that there was no basis or entitlement by the defendants to be indemnified by either of the third parties as no contract existed between them nor was there any statutory requirement that could found such an indemnity and that in addition in this case there was nothing which favoured an argument or contribution.
The defendants' argument is that they have a strong case for their contention that the third party directions be made so as to permit those proceedings to be determined at trial. There is merit in this submission as it is extremely difficult to determine whether the assertions made have any force without the benefit of full pleadings or evidence. They take issue with the suggestion that they are obliged to prove their case against the first and/or second third parties by means of evidence in order that the third party directions be made.
It is the case that a third party notice must state the nature and grounds of the claim or issue for determination as well as the extent of the relief sought. In that sense the focus is not so much on the merits of the claim but rather whether or not in the first instance the defendants should be permitted to pursue third party proceedings.
In my view it is not appropriate at this stage of the proceedings to make a determination as to the defendants' argument that in taking the plaintiff to the defendants' premises the first and second third party assumed a duty of care to the plaintiff and that the second third party in particular assumed a further duty by undertaking to assist in showing the plaintiff around the premises, particularly as these matters are obviously in dispute. Whether or not the first and second third parties did or should have been aware of the alleged frailties of the plaintiff is another area which simply cannot be determined on the available material at this point in time and no doubt is in issue.
The defendants argue that the nature of their claim against the third parties is one for indemnity or contribution. The grounds for that claim are that the first and second third parties failed to assist or warn both the plaintiff and the defendants of certain matters outlined in the pleadings. This of course is disputed by the first and second third parties. Order 19 of the Rules of the Supreme Court states the circumstances in which a defendant may issue a third party notice and clearly there must be a valid reason for such proceedings.
In this case the defendants argue that they meet each of the criteria required pursuant to O 19, r 1 in that:
(a)the defendants are entitled to a contribution or indemnity; or
(b)the defendants are entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, here the defendants argue that there is a substantial similarity in the remedy or relief claimed; and
(c)that there is a substantial similarity in the questions and/or issues to be litigated.
Each of these assertions is disputed on behalf of the first and second third parties.
Relevant to O 19, r 1(a) the third parties submit that "indemnity" and "contribution" refer to situations where a right of indemnity arises from an expressed or implied contract or where the relation between the parties either at law or in equity gives rise to an obligation on one party to indemnify the other or where there is an implied duty under the law and in particular circumstances such that one party should indemnify the other; Eastern Shipping Co Ltd v Quah Beng Kee [1924] AC 177. On the face of it this would seem to be the usual type of claim for contribution or indemnity in a third party notice pursuant to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947.
Relevantly s 7(c) contemplates a situation where a tortfeasor liable in respect of damages may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise. The practical effect of this according to counsel for the defendants which view I accept is that the first and second third parties are alleged to be joint tortfeasors. Part of the thrust of the submissions on behalf of the third parties as to this aspect of the matter suggests that contribution is available only where defendants area sued jointly in tort and is not relevant to joining a third party and seeking contribution from them.
I accept the submission of counsel for the defendants that this cannot be so when one has regard to s 4 of that Act dealing with apportionment. Section 7(1)(c) clearly deals with joint tortfeasors and makes allowance, for example, for a defendant to join additional parties in appropriate circumstances and is not restricted to situations where defendants are jointly sued in tort.
Both counsel for the third parties and counsel for the plaintiff argue that the relief or remedy claimed in the third party proceedings is not substantially the same or similar to the relief claimed in the plaintiff's proceedings against the defendants. The defendants claim an indemnity or contribution against the third parties whereas the plaintiff claims damages as against the defendants.
In answer to this counsel for the defendants argues that this is too narrow and restrictive an approach and the similarity between third party proceedings and the original action should be considered on a practical and non‑technical basis; Pioneer Concrete (NT) Pty Ltd v Watkins Ltd (1983) 48 ALR 365 at 374. The practical effect it is said is that in each instance the relief can be categorised as damages claimed by the plaintiff against the defendants for personal injuries.

In the circumstances I do not accept that the factual situation in Hahn v Conley (supra) upon which counsel for the third parties relies can helpfully or practically be applied to this particular situation. Counsel for the third parties relies on Australian Turf Industries Pty Ltd v Dalet Pty Ltd [1998] WASCA 311 in this regard also but as is pointed out by counsel for the defendants that case is authority of a fact that proceedings claiming an indemnity or contribution pursuant to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 are not proceedings in which damages are sought for the purposes of the Workers' Compensation and Rehabilitation Act. The defendants' position is that in this case it is the same relief or remedy being sought if one takes a practical and non‑technical view of the injury to the plaintiff and the heads of damages claimed. Again I consider that this argument has merit.
In relation to O 19, r 1(c) again both counsel for the third parties and counsel for the plaintiff argue that the issue in the third party proceedings is not substantially the same as that in the original action and therefore should not be properly determined as between the plaintiff and defendants as well as between the defendants and the third parties. It is argued that the third parties did not owe any duty of care to the plaintiff in the circumstances and that all persons present at the premises were guests of the defendants. Therefore, according to counsel for the third parties, they owed no duty of care to the defendants and so no breach could occur nor could any liability be incurred.
Counsel for the plaintiff submits that as the plaintiff has no cause of action against either the first or second third party it follows as a matter of logic that the defendants has no cause of action against either the first or second third party. Once more it is difficult without the benefit of full pleadings before the Court to determine this issue. The question raised on behalf of the third parties as to whether there is an issue properly to be tried in the course of determining liability highlights the difficulty.
I accept the submission on behalf of the defendants that these are matters which in the end would appear to go to the merits of the case which are not before the Court at this time.
Broadly speaking, on the material available, it would appear that similar factual issues would have to be considered in both the original action and third party proceedings in the sense that there would be an investigation by way of evidence with respect to the alleged frailty of the plaintiff and other relevant characteristics of the plaintiff, the extent (if any) to which such frailties and characteristics were apparent at the time, the events relating to the period preceding the alleged fall, the circumstances of the fall itself and ultimately the question of quantum of damages.
This is not to say in each instance the issues would be precisely the same but from a practical perspective there is obviously some commonality between them. If such matters had to be re‑litigated or re‑ventilated clearly this would involve a considerable waste of time and funds not to say inconvenience to various persons. Presumably that is why the third party procedure is available and can be activated where common issues arise so that third parties can be bound as well as those parties in the original action. This also precludes, one would hope, problems arising as a result of inconsistent results.
I accept the submission on behalf of the defendants that at this point the Court is not required to consider in detail the merits of the case nor to weigh evidence and that the appropriate forum for this to occur is at trial where a final determination can be made; Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365.
I do not propose to comment on or make any ruling as to the matters raised on behalf of the third parties with respect to the right of subrogation and various matters concerning the policy the defendants apparently had with HBF Insurance with respect to liability as occupiers of the premises and what consequences might flow from that. The assertions contained in those submissions are not before the Court at this time and cannot constitute evidence.
Although counsel for the plaintiff was heard and made helpful submissions to the Court, in the end this is a matter that is more properly confined as between the defendants and the first and second third parties. There is limited material before the Court at this time and in my view an injustice may well occur if the defendants are deprived of the opportunity to plead their claim as against the first third party and the second third party.
For that reason the defendants' appeal is allowed and I will hear counsel as to any further appropriate orders that need to be made.