Jefrin Pty Ltd v Wuyts

[2005] NSWLC 11

Local Court of New South Wales

CITATION:	Jefrin Pty Ltd v Wuyts [2005] NSWLC 11
JURISDICTION:	Civil
PARTIES:	Jefrin Pty Ltd Tiffany Wuyts
FILE NUMBER:	137 of 2004
PLACE OF HEARING:	Ballina
DATE OF DECISION:	06/03/2005
MAGISTRATE:
CATCHWORDS:	Property - inspection - contributory negligence
LEGISLATION CITED:
CASES CITED:	Jones v Bartlett 2000 HCA 56 Drotem Pty Ltd v Manning NSW CA 16.11.2000 Stannus v Graham 1994 Aust Torts Reports
REPRESENTATION:	Colin Heazlewood instructed by Pogson Cronin David Cutler instructed by Abbott Tout
ORDERS:

Reasons for Decision

1    The Plaintiff Company is suing the Defendant for damages which it alleges have arisen as a result of the Defendant’s negligence. The Statement of Claim was issued for the amount of $36402.13. The Defendant has denied negligence, has contested the degree of the Plaintiff Company’s loss and, as an alternative, has alleged contributory negligence on the part of the Plaintiff Company.

The Facts

2    The facts in the case are not essentially in dispute and may be stated as follows. In 2001 the Defendant purchased a property at Billinudgel, a rural location on the far north coast of New South Wales. Although it was not a large property, it had a creek running through it and access to the house from the public road involved the crossing of a wooden bridge. The bridge was about thirty metres from the front gate and about fifteen metres from the house. The bridge consisted of two large beams or girders which straddled the creek (the ends of the girders were encased in cement blocks) and cross planks which formed the deck of the bridge. The Defendant and her father indicated that they had crossed the bridge in vehicles on many occasions and had never had any cause for concern (the Defendant crossed it as often as six times a day in her 4WD vehicle). In addition, two furniture trucks had crossed the bridge when the Defendant had moved in and a cement truck had also crossed the bridge on an occasion when the Defendant was having some work done at or near her house. Neither she nor her father had noticed anything out of the ordinary on those occasions nor had visitors, including the drivers of the furniture and cement trucks, expressed any concerns about the fitness of the bridge to carry their vehicles. The Defendant had never undertaken a close inspection of the bridge nor had she engaged an engineer or some other person with appropriate expertise to do so.

3    The Defendant was having some work done at her property in May, 2003, and her father ordered eight metres of road base from Batson Sand & Gravel. That supplier engaged the Plaintiff Company to make the delivery. The Plaintiff Company is a private company through which David Caesar and his wife run their transport operations. On the afternoon of 8th May Mr. Caesar drove onto the Defendant’s property. His recollection is that he had nine metres of road base on his truck. The total weight of Mr. Caesar’s truck and load was a little in excess of 20 tonnes, perhaps as high as 21.5 tonnes. Mr. Wuyts met Mr. Caesar after he entered the property and directed him to the work area which was over the bridge. Mr. Caesar drove onto the bridge and was about three quarters of the way across when the bridge collapsed under him. The truck rolled onto its side and tumbled into the creek. The truck was extensively damaged as a result of the collapse.

Expert Evidence

4    Both parties introduced expert evidence. Mr. Williams and Mr. Forrest were engineers and Mr. Crouch was a builder. Messrs. Williams and Crouch had made careful examinations of the bridge after the accident and Mr. Forrest had examined all of the other evidence, including the statements of Messrs. Williams and Crouch. Four significant conclusions emerge from their evidence

§ the bridge had been built in a manner which was reasonable for its purpose;

§ the decking had been replaced at some stage after initial construction; the decking timber was in good condition (Mr. Crouch, who repaired the bridge after the accident, used the undamaged decking timber for the decking on the new bridge);

§ the bridge had collapsed because the two girders were rotten;

§ there was no external sign on those girders to indicate that they were rotten inside.

Issue of Liability

5    It was the Plaintiff Company’s submission, in short, that the Defendant was negligent because she, through her agent, invited the Plaintiff Company to bring its vehicle onto her property and that she invited the driver, through her agent, to take the vehicle over a bridge that she either knew to be defective or should reasonably have known to be defective. The Plaintiff Company did not invite me to specifically reject the evidence of the Defendant that she did not know that the bridge was defective but it did argue that the Defendant should have had an examination made of the bridge if she was intending to have heavy vehicles drive upon it and had acted unreasonably by not doing so.

6    The Defendant’s submission, in short, was that the Defendant was not negligent because she did not know that the bridge was defective nor was there any reason for her to suspect that the bridge was defective.

7    Negligence is established if it can be demonstrated that a person who has a duty of care to another has failed to protect that person against the unreasonable risk of damage or danger. The risk must relate to something which the person knew or ought reasonably to have known. The concept of negligence, therefore, involves reasonable conduct and foreseeable harm.

8    It has been accepted for many years that the occupier of land or premises has a duty of care to those who come onto the land or into the premises. The common law evolved to the extent that there was a rather complex set of rules which were used to evaluate liability and these rules essentially involved the nature of the danger which might confront the person coming onto the property (e.g. was it an obvious danger such as a disused mine pit or a hidden trap such as a bomb placed by the occupier to wound thieves) and the status of the person coming onto the property (e.g. had the person been invited or was the person a trespasser). There has been a tendency in recent times to depart from this rather formal and complex approach.

9    During the course of argument I was referred to four cases, the cases being Short v. Barrett (NSWCA 5.10.1990), Stannus v. Graham (1994 Aust. Torts Reports 81), Jones v. Bartlett (2000 HCA 56) and Drotem Pty. Ltd. v. Manning (NSWCA 16.11.2000). In Drotem’s case, Powell, JA, reviews much of the law relating to what is commonly called “occupier’s liability” and refers to the earlier three judgements. It might be noted in passing that the three earlier cases involved residential premises and in each case the injured plaintiff was unsuccessful. Drotem’s case involved commercial premises to which members of the public came on a frequent basis and in that case the plaintiff was successful.

10    In the present case I am dealing with the responsibility of the occupier of residential property and I accept that the principle which I should follow is as set out in the following comments of Meagher, JA, in Short v. Barrett:

“In my view, a householder …………… is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they either actually know it is unsafe or else receive a warning that it may be unsafe.”

11    This passage was mentioned and approved in Stannus v. Graham and in Drotem Pty. Ltd. v. Manning.

12    In Drotem’s case, Powell, JA, indicated that “what will constitute a warning will depend upon the circumstances of each particular case”.

13    In the present case, the Defendant was not aware of the rotten state of the bridge’s girders and I accept that she had no warning of the problem. The Defendant was familiar with the bridge’s surface and it appeared to be sound. The decking was reasonably new and that part of it which was not damaged in the accident was used by an experienced bridge builder for the decking of the repaired bridge. The Defendant had not seen the under side of the bridge prior to the accident but, even had she done so, she would not have seen anything out of the ordinary as there was no external sign of rot. In addition, the Defendant had used the bridge many times and had seen it used by others many times (on a few occasions, by persons driving heavy vehicles); she had not experienced or seen anything to suggest to her that the bridge was defective nor did others advise her of any concerns that they might have had in that regard.

14    Under those circumstances I am not satisfied that the Defendant was negligent. It follows that there will be a verdict in favour of the Defendant

Contributory Negligence and Damages

15    Although these issues are academic following the above conclusion, I will touch upon them briefly.

16    I am satisfied that Mr. Caesar was not negligent in his driving of the Plaintiff Company’s truck. The evidence indicates that he was driving at a safe speed when he came onto the bridge and there was nothing in his evidence or the evidence of Mr. Wuyts to suggest that he failed to drive in a reasonable fashion. The only evidence which might possibly have allowed me to consider negligence on the part of Mr. Caesar came from Mr. Forrest. Mr. Forrest expressed the opinion that it was probable that “the Kenworth truck was not travelling central to the bridge as it approached the exit end.” Even if that was the case (and there is no eye witness evidence to that effect) I do not accept that that meant that the driver was acting unreasonably. There was nothing about the bridge to suggest to him that it was defective.

17    The Plaintiff Company’s loss was based on three matters - the damage to the vehicle and cost of retrieving it from the creek, the cost of investigative work and the loss of income to the Plaintiff Company because of its inability to use the truck for a period.

18    The cost of repairing the vehicle was $17,421.44, the cost of repairing a damaged tarpaulin was $150, the cost of crane hire to lift the vehicle from the creek was $1,435.50 and the cost of towing and recovery was $1,622.50. These expenses are obviously compensable.

19    The fee for the structural engineer’s report ($770) and loss investigation fees ($775.50) are costs associated with the preparation of the claim and do not constitute compensable loss.

20    The Plaintiff Company’s principal source of income came from the transport business operated by Mr. Caesar. The Plaintiff Company’s accountant, Mr. Schumacher, gave evidence. He indicated that the vehicle was off the road for six weeks after the accident and that, based on earnings before and after the accident, it was reasonable to assume that a gross figure of $14,227.19 was lost during those six weeks. He further indicated that, based on the annual fuel bill for the truck, an amount of $516 was spent each week on fuel. His assessment of the loss was, therefore, $14,227.19 minus $3,096 (i.e.6 x $516), leaving a nett loss of $11,131.19. The Defendant presented the Plaintiff Company’s taxation returns which showed losses for the 2002 and 2003 taxation years and submitted, in essence, that, as the company ran at a loss, it has not established that it lost anything as a result of the incident. I do not accept that that is necessarily the case as I would need to consider a more detailed presentation of the Plaintiff Company’s expenditure to reach a conclusion along those lines. The fact remains, however, that even if there was a gross loss of $14,227.19 (the process used to establish that figure was a sensible process) there must have been more savings than merely petrol as a result of the vehicle being off the road. Aspects of vehicle expense such as servicing and maintenance and wear and tear relate directly to distances being travelled by a vehicle and if a vehicle is not being driven those expenses are either avoided or reduced. I also note that, when giving evidence, Mr. Caesar indicated he worked on a farm for a period during his six weeks’ break from truck-driving. As the Plaintiff Company was the means by which Mr. Caesar and his wife managed their income, allowance would have to be made for this aspect. The best that Mr. Caesar could say was that he earned about $1,000.

Conclusion

21    As I am not satisfied that there was any negligence on the part of the Defendant there will be a verdict for her. Had I been satisfied that there was negligence on the part of the Plaintiff Company I would have accepted that its loss amounted to $20,628.44 for property damage, retrieval and towing and an estimated $7,000 for nett loss incurred as a result of the vehicle being off the road for six weeks. There would not have been any reduction for contributory negligence.