Geroheev Pty Ltd v Wheare

[2004] WASCA 206

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   GEROHEEV PTY LTD & ORS -v- WHEARE [2004] WASCA 206

CORAM:   TEMPLEMAN J

ROBERTS-SMITH J
MCLURE J

HEARD:   18 MAY 2004

DELIVERED          :   14 SEPTEMBER 2004

FILE NO/S:   FUL 10 of 2003

BETWEEN:   GEROHEEV PTY LTD

MARINA ATHANASIOU
ROSE FERMANIS
ROSE COURTIS
Appellants (Defendants)

AND

RAMON JON WHEARE
Respondent (Plaintiff)

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram   :COMMISSIONER REYNOLDS

Citation Number       : [2002] WADC 266

File Number            :  CIV 2407 of 2000

Catchwords:

Tort - Occupiers liability - Drainage grate gives way under truck driver while making deliveries - Whether manager of premises agent of owner or subcontractor - Whether negligence from lack of proper inspection of grate

Legislation:

Occupiers Liability Act 1985 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellants (Defendants) :     Mr D R Clyne

Respondent (Plaintiff)    :     Mr D M Bruns

Solicitors:

Appellants (Defendants) :     Pynt & Partners

Respondent (Plaintiff)    :     Separovic & Associates

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

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29

Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co‑operative Assurance Co of Australia Ltd (1931) 46 CLR 41

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Jones v Bartlett (2000) 205 CLR 166

Nagle v Rottnest Island Authority (1993) 177 CLR 423

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Rosenberg v Percival (2001) 205 CLR 434

Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337

Tame v State of New South Wales (2002) 211 CLR 317

Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Burns v Grigg [1967] VR 871

Haseldine v C A Daw & Son [1941] 2 KB 343

Hollis v Vabu (2001) 207 CLR 21

Marshall v Whittakers Building Supplies (1963) 109 CLR 210

Stannus v Graham (1994) A Tort Rep 81-293

Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16

Voli v Inglewood Shire (1962) 110 CLR 74

Woodward v Mayor of Hastings [1945] KB 174

Zuijs v Wirth Bros (1955) 93 CLR 561

1. TEMPLEMAN J:  The appellants are the owners of a small shopping centre at Scarborough.  The premises include a Foodland shop and a car parking area at the rear.  At the material time, the premises were managed for the appellants by Knight Frank (WA) Pty Ltd ("Knight Frank").

2. The respondent was a truck driver who was employed to deliver bread to retail premises.  On the morning of 9 April 1999, just as it was becoming light, the respondent drove his truck to the appellant's premises, and parked in the parking area.

3. The respondent took a tray of loaves from his truck to the shop.  He then returned to collect some muffins which he had left in the truck.

4. When he walked back from the truck to the shop, carrying the muffins, he stepped onto a drainage grate in the car park.  As he did so, his left foot went through the grating and, as the respondent put it in evidence "just kept going down through the drain".  As a result, the respondent suffered an injury to his left knee.

5. The respondent brought an action in the District Court against the appellants.  The respondent alleged that his knee injury was caused by their negligence and/or breach of statutory duty.  The appellants denied liability.

6. The action went to trial on the issue of liability only.  It was tried by a Commissioner of the District Court.

7. The learned Commissioner held that the appellants were negligent and in breach of their statutory duty arising under the Occupiers' Liability Act 1985.  However, the Commissioner found also that the respondent was 20 per cent contributorily negligent.

8. The appellants now appeal against the finding that they were negligent and in breach of their statutory duty of care.  They contend also that the respondent was wholly responsible for the accident: or at least, that he was contributorily negligent to a much greater extent than 20 per cent.

The Commissioner's findings in relation to the accident

1. Although the Commissioner did not say so expressly, it is clear that he accepted the evidence of an engineering expert called by the respondent – William Jack Apgar – as to the dimensions and configuration of the grate through which the respondent fell.  The evidence was that the grate was located in an opening 465 mm long and 450 mm wide.  The grate consisted of two side bars and nine cross bars.  The cross bars were 40.8 mm wide and 8.2 mm thick.  They were 430 mm long and spaced at 44 mm intervals.  The grate was of welded construction (AB 14 and 140).

2. Mr Apgar analysed the yield strength of the bars, assuming reasonable weld continuity at each end.  He concluded that they could be expected to sustain a lateral force of 260 kg.  Mr Apgar said that such a force could readily be applied by one set of the rear wheels of a 3 tonne truck accelerating at a rate of 1.7 metres per second.  The force could also be readily applied in braking.  They were well within the capability of a small truck.

3. Mr Apgar concluded:

   " … it is clear that the grate involved in the subject accident is not of adequate strength for service in an area being traversed by trucks.  The indication is that the bars of the grate have been bent from normal vehicle traffic and that this has caused the grate to deteriorate such that welds progressively failed causing two bars of the grate to become loose."  (AB 15)

4. The respondent gave evidence that shortly after the accident he found one of the metal bars some three or four metres away from the grate.  The Commissioner generally accepted the respondent's evidence.

5. The Commissioner made the following findings (at AB 22-4):

   •" … the bars of the drainage grate would have gradually bent and deteriorated over a significant period of time due to the lateral forces from the turning wheels of delivery trucks.  I accept the (respondent's) evidence that he had noticed that the grate was bent before the accident."

   •" … a metal bar was missing from the drainage grate at the time of the accident."

   •" … the metal bar would have gradually bent over time and … eventually it deteriorated to the point where the welds failed."

   •"(the bar) probably broke off the grate in service or someone broke it off in a damaged condition."

   •"none of this (ie bending and failure) would or could have happened if the grate had not been structurally defective …"

   •" … the (respondent) probably fell into the drain and injured his knee as a result of stepping on the drainage grate at least where the metal bar was missing.  The structural defects of the bar immediately adjacent to where the bar was missing caused the (respondent's) left leg to fall deeper into the drain than it otherwise would have thereby exacerbating his fall."

6. In my view, those findings were well open to the Commissioner on the evidence.  Indeed, the only reasonable inference to be drawn from the fact (as the Commissioner found it to be) that the respondent found the missing bar of the grate some little distance from it after the accident, is that the bar was missing when the respondent stepped on the grate.

7. The finding that the resulting gap was greater than it might otherwise have been as a result of bending over time due to the forces applied by delivery vehicles is supported by more recent photographic evidence, showing that the bars have bent again since they were repaired following the accident.

8. These considerations lead me to the conclusion that there is no substance in the appellants' second ground of appeal in which it is contended that the Commissioner was "wrong in law and fact" in finding that a bar was missing from the grate when the respondent stepped on it.

The Commissioner's findings in relation to Knight Frank

1. The premises were managed for the appellants by Knight Frank.  Their retail portfolio manager at the material time was Gemma Margaret Galipo.  Mrs Galipo gave evidence about the way in which she managed the premises in the course of her employment with Knight Frank and as to the extent of its authority.

2. One of the appellants, Marina Athanasiou, also gave evidence about her perception of the way in which Knight Frank managed the premises. That evidence was given in support of the appellants' proposition that Knight Frank was an independent contractor. Had that been the case, it might have been open to the appellants to bring themselves within the provisions of s 6 of the Occupiers' Liability Act and thereby avoid liability for negligence.

3. In this context, the Commissioner made the following finding of fact:

   "To the extent that Mrs Athanasiou was attempting to say that Knight Frank had ultimate control of the management of the premises I totally reject her evidence.  Ms Galipo gave clear evidence which I accept to the effect that she had the authority of the owners to make relatively small decisions on the management of the premises without consulting them.  When more weighty decisions had to be made she requested the authority of the owners and supplemented her request with a recommendation.  Where there is conflict between the evidence of Mrs Athanasiou and Ms Galipo I prefer and accept the evidence of Ms Galipo."  (AB 19)

4. In my view, that finding, which was clearly open on the evidence, leads inevitably to the conclusion the Commissioner reached: that "Knight Frank by Mrs Galipo was truly a managing agent and not an independent contractor". It followed that s 6 of the Occupiers' Liability Act had no application.

5. In ground 1 of their grounds of appeal, the appellants contend that the Commissioner was wrong in law and in fact in reaching those conclusions.  However, they based their submissions on a number of decisions of the High Court in which the distinction was drawn between employees and independent contractors; not between agents and independent contractors.

6. In my view, the distinction relevant to the present case is that drawn by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co‑operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48:

   "The independent contractor carries out his work, not as a representative but as a principal.  But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity."

7. On the findings of fact made by the Commissioner, Knight Frank clearly fell into the latter category.  Its role was therefore that of a managing agent, for whose acts or omissions the appellants were liable directly.

The Commissioner's findings in relation to negligence

1. The relevant findings and conclusions are set out in par 49 to par 51 of the Commissioner's reasons, as follows:

   "I accept Ms Galipo's evidence that she inspected the premises on a monthly basis to aid her preparation of monthly reports to the (appellants).  However, I am not satisfied that her inspections of the car park area and the drains were anything more than general perusals.  I accept the evidence of Mr Apgar that the Main Roads Department visually inspects its road drains and grates at least once a year.  I find that there should have been and was no system in place for the proper inspection of the drainage grates in the car park area of the premises.  I also find that the monthly inspections carried out by Ms Galipo were inadequate in this regard.  In my view the position of the drainage grate in this particular case clearly warranted proper inspection.  I have already mentioned that trucks drove over it.  Further, and also importantly, the combination of its relative position in the car park area and its relative position to the back door of the shop made it likely that delivery drivers would step on it from time to time when they accessed the back door of the shop to make their deliveries.

   … The drainage grate in question must have been in the car park area for at least about two years before the accident.  While it would have been necessary to conduct scientific tests on the grate to determine its strength or lack thereof for its use, the structural weakness of the grate manifested itself by the bars bending.  This was no hidden danger.  I find that if a proper inspection of the drainage grate in question was carried out before the accident it would have been visually obvious that the bars were bent.  Such an observation would have prompted further investigation and in light of Mr Apgar's evidence inevitable replacement.

   The (respondent) delivered bread and muffins to the shop on the premises.  He had done so on about five days a week for about three months before the accident.  Clearly he was an invitee and a frequent one at that.  The structurally defective drainage grate was positioned in the car park area where delivery drivers parked their trucks and accessed the back door of the shop.  The (appellants) would not have been burdened financially or at all by causing proper inspections to be carried out of the drainage grates in the car park and maintaining and/or replacing defective grates.  In my view it was reasonably foreseeable that a delivery driver who parked his truck in the car park area and accessed the back door of the shop to do a delivery would be exposed to injury if a drainage grate positioned on the drain in question was structurally defective."

2. The Commissioner's ultimate finding was that the appellants were negligent and in breach of their statutory duty to the respondent.

3. The appellants challenge this conclusion in ground 4:

   "The learned Commissioner was wrong in fact and in law in finding that the appellants … had breached the duty of care which they owed to the respondent … in the circumstances of this case there was no foreseeable risk of injury constituted by the grate to a person using the car park."

4. The appellants accept that the Commissioner stated the law correctly when he said:

   "The duty of care of the defendants was to show such care as in all the circumstances of the case was reasonable to see that persons including the plaintiff did not suffer injury or damage by reason of a danger due to the state of the premises or to anything done or omitted to be done on the premises.  All dangers of which the occupiers knew or reasonably should have known are included."  (AB 21)

The appellants' case in relation to negligence

1. In essence, the appellants' case is that until the bar of the grate actually broke or fell away, the grate would have appeared to be sound; and certainly able to bear the weight of a person when it regularly withstood vehicular traffic which, on the evidence, included 25 – 30 tonne trucks.

2. Further, the appellants contend that accepting (as they must) the Commissioner's finding that the bar was missing when the respondent stood on the grate, there is no evidence about when it was dislodged.  That could well have happened shortly before the accident, such that the appellants or Knight Frank would not have had an opportunity to observe the defect.

3. Given the Commissioner's finding that if a proper inspection of the drainage grate had been carried out "it would have been visually obvious that the bars were bent" it is necessary to consider whether there was a foreseeable risk that the bars might continue to bend to the point of failure and thereby give rise to a risk of injury of the kind suffered by the respondent.

4. In answering that question, it is necessary to keep in mind that a risk may constitute a foreseeable risk, even though it is unlikely to occur.  It is enough that the risk is not far fetched or fanciful: see Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, especially at p 486-7) following Nagle v Rottnest Island Authority (1993) 177 CLR 423 in which the principles stated in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 were applied, recognising that "foreseeable risk" was to be understood in the way described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48.

5. In my view, the Commissioner was entitled to find that had there been a proper inspection of the grate before the accident, it would have been obvious that the bars were bent.  That being so, it would have been equally obvious that the bending was the result of forces applied to the grate in service; and that if the grate remained in place, the bars would be likely to bend further, to the point of failure.

6. That being so, it is not far fetched or fanciful to foresee that before the defect was noticed, a person walking through the car park might step on the grate with the results suffered by the respondent.  The fact that the car park was used by people carrying goods in a way which would obscure their vision of the ground emphasises the extent of the risk.

7. Given the Commissioner's finding that the appellants would not have been burdened financially by causing proper inspections of the drainage grate to be carried out and maintaining and/or replacing defective grates, I consider that the Commissioner was right to hold that the appellants were negligent.

8. For these reasons the appellants' ground 4 is not made out.

9. In ground 5, the appellants contend:

   "Further and alternatively to the extent any such risk may have existed the appellants' … response to such risk namely the appointment of a Managing Agent to carry out regular inspections of the property was an appropriate response to any such risk as may have existed."

10. In my view, this ground fails both in law and on the facts as found by the Commissioner.  As a matter of law, the appellants cannot avoid a duty of care by the appointment of a managing agent who, as Dixon J said in the Colonial Mutual Life Assurance Society Ltd case (supra) stands in the place of the principal.

Contributory negligence

1. In their ground 3, the appellants contend, on the basis of the Commissioner's finding that when the respondent stepped on the grate one bar was missing and others were bent, that:

   " … the grate represented an obvious danger and one which in the circumstances of the case, given the respondent's … knowledge of the grate, should have caused him to take proper care for his own safety and not step on the grate.  Alternatively, such finding should have caused the Commissioner to apply a far greater percentage for contributory negligence against the respondent."

2. In considering the question of contributory negligence, the Commissioner applied the principle set out in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. This requires the Court to apportion the responsibility for damage in a case such as this, by comparing the relative culpability of the parties and the relative importance of their respective acts.

3. Applying that principle the Commissioner said:

   "The (respondent) was well aware of the existence and the position of the drainage grate in question.  In my view, he should have kept a better lookout and exercise more care for his own safety when he stepped away from the back of his truck towards the drainage grate to access the back door of the shop to deliver the muffins.

   I find that the (respondent) was 20 per cent contributorily negligence (sic)."  (AB 25)

4. In Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 Taylor J (with whom Dixon CJ, Fullagar and Kitto JJ agreed) referred to the need for an employer to have regard to the fact that a risk might arise to an

employee in carrying out a particular task from the fact that "the performance of those operations have been committed to a fallible human agent".  (at p 342)  Thus:

"The duty of (the employer) is not fully discharged unless, in the provision of safeguards, he has taken into account, not only that particular tasks necessarily involve particular risks, but also that inadvertence and inattention, short of positive negligence, are common concomitants of everyday work."

1. In my view, that proposition applies also in relation to the occupiers of property and their invitees.

2. As a general proposition, people are expected to look where they are going.  That does not translate into a requirement to scrutinise the forward ground before any step is taken, although it is no doubt sensible and prudent to pay greater attention to unusual features of the ground, such as the drainage grate with which this case is concerned.

3. In my view, the Commissioner was right to say that the respondent should have kept a better lookout and exercised more care for his own safety.  However, the apportionment of culpability such as that undertaken by the Commissioner involves the exercise of a discretion.

4. In the present case, the Commissioner applied the correct principle to facts which he was entitled to find.  I am not persuaded that the Commissioner mis‑exercised his discretion.  I would not, therefore, disturb his conclusion that the respondent was 20 per cent contributorily negligent.

5. For all these reasons, I would dismiss the appeal.

6. ROBERTS-SMITH J:  I agree with the reasons given and conclusions reached by Templeman J, save as to ground 4.  In relation to that I agree with the reasons of McLure J.

7. Accordingly, I too would dismiss the appeal.

8. MCLURE J:  I have had the advantage of reading in draft the reasons to be published by Templeman J.  I agree that the appeal should be dismissed for the reasons he gives save in relation to ground of appeal 4.  Ground 4 provides:

   "The learned Commissioner was wrong in fact and in law in finding that the Appellants (Defendants) had breached the duty

of care which they owed to the Respondent (Plaintiff) in that the circumstances of this case there was no foreseeable risk of injury constituted by the grate to a person using the car park."

1. This ground of appeal relates to the respondent's claim for breach of s 5 of the Occupiers Liability Act 1985 (WA) ("the Act") and under the general law of negligence.  Like s 5(1) of the Act, the ground conflates issues of duty of care and breach of duty.  The focus of the challenge is on the common law requirement that the risk of the harm suffered be reasonably foreseeable.  That is a necessary, although insufficient, condition for the existence of a common law duty of care:  Tame v State of New South Wales (2002) 211 CLR 317; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29.

2. The Commissioner's analysis and findings concerning the accident are in terms of the requirements of the general law.  However, the findings and conclusions are also applied to the claim for breach of statutory duty.  No party contends that there is a material difference between the statutory and general law claims.  There is authority for that view:  Jones v Bartlett (2000) 205 CLR 166 at [226] per Kirby J. As the matter is conceded, I proceed on that basis.

3. Further, the parties accept the correctness of the Commissioner's formulation of the duty of care as being confined to dangers of which the appellants (occupiers) knew or reasonably should have known.

4. The alleged negligence of the appellants was said to consist of an omission, rather than an act.  The omission was said to be the failure to respond to the visible damage to the grating so as to have it checked, I infer by an expert, for structural integrity.

5. In determining what an occupier ought reasonably to have known, the knowledge of experts will be relevant provided the exercise of reasonable care required the occupier to obtain the services of an expert to inspect the property for the purpose of advising on the nature and level of known or suspected risks:  Jones v Bartlett at [102].

6. The relevant findings of fact made by the Commissioner are as follows.  The bars of the drainage grate would have gradually bent and deteriorated over a significant period of time due to the lateral forces from the turning wheels of delivery trucks.  Further, he accepted the evidence of Ms Galipo, an employee of the appellants' managing agent, that she inspected the property on a monthly basis.  He continued:

   "However, I am not satisfied that her inspections of the car park area and the drains were anything more than general perusals.  I accept the evidence of [the respondent's expert] Mr Apgar that the Main Roads Department visually inspects its road drains and grates at least once a year.  I find that there should have been and was no system in place for the proper inspection of the drainage grates in the car park area of the premises.  I also find that the monthly inspections carried out by Ms Galipo were inadequate in this regard."

7. He also found that the grate must have been in the carpark area for at least two years and that it would have been necessary to conduct scientific tests on it to determine its strength or lack thereof for its use.  He continued:

   "… the structural weakness of the grate manifested itself by the bars bending.  This was no hidden danger.  I find that if a proper inspection of the drainage grate in question was carried out before the accident it would have been visually obvious that the bars were bent.  Such an observation would have prompted further investigation and in light of Mr Apgar's evidence inevitable replacement."

8. The appellants do not in their grounds of appeal challenge the trial Judge's findings of fact that a "proper" inspection of the drainage grate by Mr Galipo would have revealed the bars were bent; the bending of the bars manifested structural weakness of the grate; knowledge that the bars had bent would have prompted further investigation (in particular, referral to an expert) and inevitable replacement.  In oral submissions the appellants contended that the risk which had to be foreseeable was that the weight of a person would be sufficient to dislodge a bar of the grate.  This submission is linked with their unsuccessful challenge to the trial Judge's finding that the bar was missing when the respondent stepped onto the grate.  Further, and in any event, the formulation of the risk is too narrow.  The precise and particular sequence of events leading to the injury need not be foreseeable:  Rosenberg v Percival (2001) 205 CLR 434 at 455. It is enough in this case if it was reasonably foreseeable that a grate with structural defects (of which the appellants knew or ought to have known) involved a risk of physical injury to persons using the carpark.

9. On the basis of the unchallenged findings made by the trial Judge, I am satisfied the Commissioner did not err in concluding that the risk of harm was reasonably foreseeable and that the appellants owed the pleaded duty of care which was breached.