Harris v Harvey (Ruling No 3)
[2013] VCC 181
•14 March 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
GENERAL DIVISION
Case No. CI-11-00246
CI-11-00248
| CAMERON HARRIS | First Plaintiff |
| and | |
| MONICA HARRIS | Second Plaintiff |
| v | |
| MARK HARVEY | Defendant |
| and | |
| BRAD TEAL REAL ESTATE PTY LTD (ABN 49 007 018 171) | First Third-Party |
| MAROONDAH CITY COUNCIL | Second Third-Party |
| ARTHUR SMITH | Third Third-Party |
| SNAP CONSTRUCTIONS PTY LTD (ACN 065 811 841 - deregistered) | Fourth Third-Party |
| DENNIS CAMPANO | Fifth Third-Party |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2013 | |
DATE OF RULING: | 14 March 2013 (Revised) | |
CASE MAY BE CITED AS: | Harris v Harvey & Ors (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 181 | |
RULING
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: Negligence – real estate agent engaged by the first defendant – when the cause of action against the real estate agent was discoverable under s27D and 27F of the Limitation of Actions Act 1958 – meaning of "fault" in s27F(1)(b)
LEGISLATION: Limitation of Actions Act 1958, s27D and 27F
CASES CITED: Spandideas v Vellar [2008] VSC 139
RULING: a declaration that the cause of action raised by the plaintiff's against the second defendant was discoverable on or about 19 November 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley | Slater & Gordon Ltd |
| For the Defendant | Ms A Magee | Moray & Agnew |
| For the First Third-Party | Mr S Moloney | Lander Rogers |
| For the Second and Third Third-Parties | No Appearance | |
| For the Fourth Third-Party | No appearance | |
| For the Fifth Third-Party | No Appearance |
HIS HONOUR:
1 This is the third ruling I have been called upon to make in this proceeding.[1] This ruling concerns the relief sought by the plaintiffs by way of Summons filed 26 October 2012 seeking a ruling on two questions that the plaintiff's cause of action against the second defendant was discoverable on or about 19 November 2011; alternatively, if that was not the case, then leave is sought to extend time within which to bring the proceedings against the second defendant.
[1][2012] VCC 1048 and [2012] VCC 1549
2 The plaintiffs are the parents of Lauren Harris, who died tragically on 26 September 2008 by drowning in a pool in the garden of a house which they rented from the first defendant. They each filed a proceeding against the first defendant claiming damages for the injuries which they suffered as a result of the death of their daughter.
3 The plaintiffs each filed a Writ on 27 January 2011. The Writs were served upon the first defendant on 3 March 2011.
4 The plaintiff obtained the consent of the defendants to file and serve an Amended Writ endorsed with an Amended Statement of Claim. The amendments are principally directed to the joinder of the second defendant. The consent of the second defendant to the joinder was qualified by insistence that the plaintiffs file the Summons so that the two the questions could be agitated.
5 Mr R Stanley of counsel appeared for the plaintiffs, Ms Magee appeared for the first defendant,[2] and Mr S Maloney appeared for the second defendant.
[2]Ms Magee adduced no evidence nor did she make any submissions on behalf of the first defendant
6 The following evidence was adduced at the hearing:
· Mr B Woollacott, solicitor with Slater & Gordon, gave evidence and was cross-examined.
· the plaintiffs tendered the following evidence:
§ the affidavit of Cameron Harris sworn 4 February 2013: Exhibit A
§ the affidavit of Monica Harris sworn 14 January 2013: Exhibit B
§ the affidavit of Mr Woollacott sworn 29 October 2012 with exhibits: Exhibit C.
· the second defendant tendered the affidavits of Rebecca Jane Baohm, solicitor, both sworn 4 February 2013: respectively marked Exhibit 1 and Exhibit 2.
The Relevant Evidence
7 The plaintiffs moved from Brisbane to Melbourne in March 2008. They rented a house owned by the first defendant at 45 Roberts Street, Essendon. Following the death of their daughter, the plaintiffs engaged Mr Woollacott of Slater & Gordon to act on their behalf.
8 In his affidavit sworn 4 February 2013, Cameron Harris described the instructions he gave to Mr Woollacott and his understanding of the involvement of Ms Laura Teal, who is an employee of the second defendant:
“3Following the death of our daughter both my wife and I consulted the law firm Slater & Gordon and instructed one of their solicitors, Barrie Woollacott. We met with Mr Woollacott in an appointment that was conducted initially via telephone conference on 7 October 2008. In a conference call we provided information to Mr Woollacott in relation to the circumstances regarding the basic rental arrangements for the property and the name of the real estate agency. In addition we provided a description of the property and specifically the backyard swimming pool.
4In our discussion with Mr Woollacott we also explained briefly that a handyman engaged by the real estate agents came to the property before our daughter's death to attend to some maintenance issues that we had informed the agent about after we had moved in. This handyman, whose name I do not know, told us that he had attended the premises before and he raised concerns about the pool fence near the barbecue and queried whether it complies with relevant standards. As neither my wife nor I had resided in houses with swimming pools before we were not familiar with the standards that applied. Then, when a Ms Laura Teal from the real estate agents came to conduct a routine inspection of the property sometime in mid 2008, I was informed by my wife that she raised our concerns about the safety of the pool fence with her. At that time it was midwinter so none of my family went outside to the pool area and nothing further was done in relation to the pool fence near the barbecue.”[3]
[3]Exhibit A, a statement made by Cameron Harris to the police is exhibited as RJB - 3 to the affidavit of Ms Baohm. It contains a similar description to what Cameron Harris said in his affidavit.
9 In her affidavit sworn 14 January 2013, Monica Harris also described the instructions she gave to Mr Woollacott and her understanding of the involvement of Ms Laura Teal:
“3After Lauren's death, Cameron and I consulted the law firm Slater & Gordon and gave instructions to a solicitor, Barrie Woollacott. Our initial appointment with Mr Woollacott was by telephone conference on 7 October 2008. During that call information was provided to the solicitor about what had happened to our daughter and we also provided some information about the rental agreement we had to the premises as well is other background matters. I recall advising Mr Woollacott of the name of the real estate agent. During that telephone discussion I recall that we informed Mr Woollacott that I had discussed our concerns about the safety of the pool with a Ms Laura Teal from the real estate agent’s office about three months after we had moved in because a handyman attending the property for maintenance work on an earlier occasion had raised it with me.
…
6Following these meetings we formally instructed Mr Woollacott to represent our family at the Coroner’s Inquest and to provide us with advice in relation to any legal action that we may take. I believe that it was in late 2010 that Mr Woollacott recommended that we commence legal proceedings against the Firstnamed Defendant and we provided instructions to Mr Woollacott to do so around that time. He later confirmed that legal proceedings had been commenced.”[4]
[4]Exhibit B, a statement made by Cameron Harris to the police is exhibited as RJB - 2 to the affidavit of Ms Baohm. It contains a similar description to what Monica Harris said in her affidavit.
10 The death was investigated by the State Coroner’s Office. A brief of evidence was produced. Mr Woollacott referred to the brief in his affidavit sworn 29 October 2012. He made enquiries of the State Coroner’s Office and was provided with the first version of the brief dated 18 May 2009. Exhibit BW-1 to his affidavit is the coversheet to the brief and the following page contains, among other things, a list of witnesses and exhibits. One of the exhibits is described as Exhibit “5”, being “Handwritten note of Laura TEAL”.
11 There was no statement from Laura Teal in the brief. Mr Woollacott reproduced part of a statement of Sergeant Dean MacLeod made on 21 April 2009, that he received a letter from Lander & Rogers, lawyers, on 16 October 2008 informing him that neither the second defendant nor Laura Teal would participate in an interview with Victoria Police.
12 The investigation into the death turned up an inspection form completed by Laura Teal on 18 June 2008 at the time when she spoke to Monica Harris. It is reproduced as Exhibit BW-6 to Mr Woollacott’s affidavit. It contains short handwritten notes of defects in the premises which Monica Harris wanted the first defendant to attend to and also a note which read “Trellis” and immediately to the right-hand-side of that word, are the words “is pool fence compliant”. The latter words are circled.
13 What the investigation also turned up was an e-mail exchange between Laura Teal and Mrs Harvey, the wife of the first defendant. The most relevant is the e-mail sent on 19 June 2008 at 9:26am. The relevant parts of it are:
“I carried out a routine inspection last night at Roberts St. the tenants are keeping the property in excellent condition it's perfect.
…
Just a couple of questions the tenants had for you
…
Secondly they are concerned about their 3-year-old getting into the pool enclosure from the sides of the BBQ. Apparently they feel that she will be able to climb up on this easy enough. They want your permission to install some Trellis at their expense? Can you please let me know of this is okay?”
14 Mrs Harvey replied by e-mail on 19 June 2008 at 1.01pm. The relevant parts of it are:
“… Tell them they can put something up near the pool at their own expense. We had our kids taught swimming lessons, so they could swim.”
15 Mr Woollacott considered that the fault of the second defendant only became apparent following the evidence of Laura Teal at the inquest. He reproduced excerpts of her evidence from the transcript of the evidence:
“Q:Could I take you to your hand written document that I think you've given evidence that you wrote at the …?---
A:Yes.
Q:You've written in a circle down in the bottom right corner, "Trellis" then there is a gap, ‘Is pool fence compliant?’?---
A:Yes.
Q:Did you, of your own initiative, question the compliance of the fence?---
A:I - I wrote that note of my own initiative. Mrs Harris brought the issue of the trellis up with me. I wrote that note asking myself sort of is the pool fence compliant.”
16 And later:
“Q:I'll be suggesting one of 2 reasons why you wrote it. One is that it echoed what Mrs Harris was asking you in relation to the pool. It echoed the concerns that she had in relation to whether the pool fence was safe. Alternatively, it echoed your thought process when you saw that barbecue enclosure?---
A:Probably the first one, definitely not the second.”
17 And later:
“Q:In that e-mail you don't write anything about an enquiry in relation to ‘Is pool fence compliant?’, As you had done on your inspection report the day prior. Why is it that you didn't convey what was on your inspection report in the e-mail?---
A:Well, I don't - I - I'm not sure. I'd obviously thought about it and just assumed that the pool fence was compliant.”
THE CORONER:
Q:Sorry, could you repeat that, please?---
A:I’d obviously thought about it overnight, because I sent the e-mail the next day. And assumed that everything was fine with the pool, and decided not to include it. That's all I can think.”
18 Mrs Harvey was asked what her response would have been if Laura Teal had included a query regarding the compliance of the pool fence. She said:
“I would have asked Laura to seek a proper person to check it out if that was the question but [the e-mail] was about Trellis, not if it was compliant. I just assumed it would be compliant.”
19 Mr Woollacott was cross-examined by Mr Maloney. It was clear enough to me that Mr Woollacott eventually obtained the full brief, which included the inspection form completed by Laura Teal and the e-mail exchange between Laura Teal and Mrs Harvey. Mr Maloney submitted that the inspection form, together with the e-mail exchange, demonstrated that Laura Teal had not included a query regarding the compliance of the pool fence. Therefore, he submitted, the plaintiffs had all the evidence they needed to form a view that an allegation could be made against the second defendant, that Laura Teal should have informed Mrs Harvey of the query and that she had not done so.
20 However, what the plaintiffs did not know until Mrs Harvey gave evidence was her response that if the query about the compliance of the pool fence had been raised with her, she would have instructed Laura Teal to engage a suitably qualified person whom she described as a “proper person” to inspect the pool fence and whether it was compliant.
21 Mr Woollacott put the matter squarely in his affidavit as follows:
“The above evidence provided the plaintiffs with facts, previously unknown to them, that Ms Teal’s fault in failing to properly advise the first defendant, or in any way act upon, her documented concerns regarding the compliance of the pool fence was a likely cause of Lauren's death.”
22 What I think is plain from the inspection form, the e-mail exchange and the evidence of Laura Teal and Mrs Harvey, is that Laura Teal was aware of a query by Monica Harris regarding her three-year-old daughter obtaining access to the pool, but there was no assessment of the merits of the query by her regarding the compliance of the pool fence, nor advice from her that Mrs Harvey should take some steps to meet the query. What Mrs Harvey was met with was whether the plaintiff's three-old-daughter might be able to gain access to the pool and not whether the pool fence was compliant.
23 It is not for me to make an ultimate judgment about whether the plaintiffs will succeed in sheeting home their allegations of fault against the second defendant, but to determine when the fault of the second defendant was discoverable. However, as a matter of logic and commonsense, if I were to conclude that the cause of action raised by the plaintiffs against the second defendant had no reasonable prospect of success, then consideration of the questions posed to me would be futile.
24 Mr Maloney did not submit that the cause of action which the plaintiffs wish to raise against the second defendant was futile, but he did submit that the law relevant to the responsibility of the principal for the conduct of an agent is well known. The law can be simply stated that there is a basic rule that a principal is jointly and severally liable with its or his or her agent for any tortious act or omission committed by the agent while the agent is acting within the scope of his or her actual or ostensible authority.[5]
[5]That principle was extracted from a considerable volume of material provided to me by Mr Maloney in a book of reference materials he had compiled which I found very helpful.
25 However, what the relationship of agency was between the first defendant and second defendant was not the subject of evidence before me. It may not, and indeed does not, appear to be a contractual relationship of any particular complexity, but I am not in a position to determine whether the second defendant acted in the scope of its actual or ostensible authority, or was in some way in breach of the contractual relationship. I am not prepared to assume, as Mr Maloney submitted I should, that the principle of law governing principal and agent will inevitably see the first defendant held liable for the acts or omissions of the second defendant.
26 Mr Maloney referred me to section 19A of the amended statement of claim to which particulars of the negligence of the second defendant are subjoined. He submitted that many of the particulars are the same particulars alleged against the first defendant. That is so, but many of them are not common to both defendants. Particulars (f) to (n) appear to me to be peculiar to the alleged omissions on the part of the second defendant, and if proven, may well justify a finding of negligence on the part of the second defendant.
27 In the end, I am satisfied that when Mr Woollacott reassessed the basis of the plaintiffs’ claim, he was in receipt of the evidence of Laura Teal and Mrs Harvey. In particular, the evidence of Mrs Harvey pointed to what she would have done had she been informed by Laura Teal of the query whether the pool fence was compliant, which is something which had not been conveyed to her in the e-mail exchange, or apparently at any other time. I think this did place a different complexion upon the conduct of the second defendant.
The Principles of Law
28 I will now set out some of the provisions of Division 2 of the Limitation of Actions Act 1958 and the relevant principles of law which I must consider in the context of the finding I have just made.
29 The first relevant provision is section 27D:
“(1)An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire–
(a)the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.”
30 The second relevant provision is section 27F:
“(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts–
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.”
31 The foregoing is the legislative matrix within which I must consider the first question. In Spandideas v Vellar,[6] Kaye J considered what the legislature intended by reference to the concept of “fault”. He said:
“In everyday discourse, it is not unusual to attribute an accident, some damage, harm or injury, to the ‘fault’ of another. In its ordinary non-legal sense, the suggestion that an injury or accident has been caused by the ‘fault’ of another means that the injury or damage was caused by an act, which the other person should not have done, or should have done differently, or by an omission by that person to carry out an act, which should have been done. Certainly, that meaning involves certain normative concepts of what should or should not have been done. However, I do not consider that s 27F(1)(b) requires that the plaintiff form a legal judgment as to the ‘fault’ of a defendant in the tortious sense of the word. Rather, I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done. In such a case, should a plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of ‘fault’; rather, what the sub-section fixes on is the knowledge of the plaintiff (or the circumstance that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done.”[7]
[6][2008] VSC 139
[7]paragraph 35. The defendant appealed. The Court of Appeal did not interfere with Kaye J's reasoning which I have quoted: [2008] VSCA 139
32 The determination of the question of fault can only be undertaken by stepping back into the shoes of the plaintiffs and their legal advisors, and in this case, Mr Woollacott, and the counsel he briefed. They were without the critical answer given by Mrs Harvey, and in all probability considered that the first defendant was liable for any acts or omissions of the second defendant in the absence of anything which interfered with that logical approach being followed.
33 The conclusion I have reached after considering the evidence, the submissions of Mr Stanley and Mr Maloney, is that when the approach reasoned by Kaye J is applied, that the fault of Laura Teal did not become known until she and Mrs Harvey gave evidence at the inquest. The inquest ran over twelve days from 14 to 18 November 2011, then from 19 to 22 March 2012, and then from 18 to 20 June 2012. Laura Teal gave evidence on 18 November 2011. According to the transcript references provided by Mr Woollacott in his affidavit, the relevant passages he quoted of Laura Teal’s evidence were from pages 444 to 449. Mrs Harvey’s evidence was at pages 140. I assume this means that Mrs Harvey gave evidence earlier in the inquest.
34 I simply set the foregoing out for the purpose of determining when the evidence was given which could then be digested by the plaintiffs and their legal advisors for the purpose of determining whether the second defendant was at fault. I think it is fair to say that the provision of the transcript and the capacity of Mr Woollacott and his counsel to scrutinise it was the time at which advice could have and should have been given to the plaintiffs of the fault of the second defendant.
35 I find that the time when the plaintiffs and their legal advisors were in a position to assess the fault of the second defendant was probably before the end of 2011, given that Laura Teal gave evidence of 18 November 2011. It is at that time that the cause of action against the second defendant was discoverable by the plaintiffs. Pursuant to the consent of the parties, the plaintiffs file Amended Writs endorsed with Amended Statements of Claim on 25 October 2012. Therefore, the plaintiffs are clearly within time to bring the proceeding against the second defendant.
Orders
36 I make the following orders:
· A declaration that the cause of action raised by the plaintiffs against the second defendant was discoverable on or about 19 November 2011.
· The cost of the Summons are costs in the cause.
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