Jen v Barnes
[2002] QSC 418
•12 December 2002
SUPREME COURT OF QUEENSLAND
CITATION:
Jen & Anor v Barnes [2002] QSC 418
PARTIES:
TRISTON LEE JEN
(first respondent/plaintiff)
GLORIA VALMAI JEN
(second respondent/plaintiff)
v
DONALD IVAN BARNES AND ROBYN ANNE BARNES AS TRUSTEES OF THE D BEX PROPERTY TRUST
(applicant/defendants)
FILE NO/S:
S 1642 of 2002
DIVISION:
Trial Division
PROCEEDING:
Application for summary judgment
ORIGINATING COURT:
Supreme Court Brisbane
DELIVERED ON:
12 December 2002
DELIVERED AT:
Brisbane
HEARING DATE:
12 November 2002
JUDGE:
Holmes J
ORDER:
Judgment for the defendants
CATCHWORDS:
PROCEDURE – COURTS AND JUDGES GENERALLY – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT
Application for summary judgment – where plaintiffs tenants of property the subject of a contract of sale between the vendor and defendants – where plaintiffs claim damages for personal injuries and loss of consortium suffered as a result of the negligence of the defendants – whether the pleadings fail to disclose any duty of care owed by the defendants to the plaintiffs – whether the defendants’ equitable interest in property as purchasers, contractual provision that property at their risk, and special knowledge from building report of defect in premises are sufficient to establish a duty of care requiring warning.Uniform Civil Procedure Rules, r 293(1)
Chang v Registrar of Titles (1976) 137 CLR 177, considered
Hill v Van Erp (1997) 188 CLR 159, considered
Pyrenees Shire Council v Day (1998) 192 CLR 330, applied
Sullivan v Moody (2001) 75 ALJR 1570, followedSutherland Shire Council v Heyman (1985) 157 CLR 424, applied
Tame v New South Wales (2002) 76 ALJR 1348, followedCOUNSEL:
Mr G W Diehm for the applicant/defendants
Mr R Oliver for the respondent/plaintiffsSOLICITORS:
Blake Dawson Waldron for the applicant/defendants
Jon Kent Lawyer for the respondent/plaintiffs
The defendants seek summary judgment against the plaintiffs under r 293(1) of the Uniform Civil Procedure Rules. The rule, of course, requires them to satisfy the court that:
(a)the plaintiffs have no real prospect of succeeding on all or a part of their claims; and
(b) there is no need for a trial of their claims or part of them.
The first plaintiff claims damages for personal injuries and the second plaintiff for loss of consortium which were said to have been caused by the negligence of the defendants. The basis of the defendants’ application for summary judgment is, in a nutshell, that the pleadings do not disclose, and the plaintiffs cannot establish, any duty of care owed by the defendants to the plaintiffs.
The plaintiffs were the tenants of a house at Esk which they rented from a Ms Martyn. On 11 January 1999 she and the defendants entered a contract of sale in standard REIQ terms in respect of the property. For the purposes of the prospective purchase the defendants had in mid-December 1998 obtained a building report which included in its summary of the property’s condition the following:
“Shower & Floor:
The main shower is leaking and the floor is rotten and will require attention soon. Written quotations are required.”
For completeness it should be said that the defendants in written submissions argued that even if there were a duty of care, this information would not have suggested an immediate danger to the plaintiffs warranting a warning. That seems to me an issue properly considered at trial, not one which ought to be resolved in isolation from other evidence on a summary judgment application. It was not pressed by the defendants in oral submissions; rather the focus was on whether there existed the requisite circumstances to found a duty of care.
According to the statement of claim:
“On 20 February, 1999 the first plaintiff was entering the bathroom of the premises when the floor gave way causing him to fall to the floor and causing his right leg to go through the floor, thereby causing the first plaintiff’s injuries”.
The negligence pleaded is the failure to warn the plaintiffs or the letting agent of the dangerous condition of the bathroom floor. The first plaintiff is alleged to have sustained back, knee and leg injuries as result of the fall, and to have suffered depression.
The property was sold subject to the plaintiffs’ tenancy. Clause 8 of the contract set out the rights of the parties pending settlement. Its terms, relevant for present purposes, are:
“8. Rights Until Settlement
8.1 Risk
The Property is at the Buyer’s risk from 5pm on the first business Day after the Contract Date.
8.2 Access
After reasonable notice to the Seller, the Buyer and its consultants may enter the property:
(1) once to read any meter;
(2) for the building inspection under clause 4; and
(3) once to inspect the Property before settlement.
8.3 Seller’s Use of Property
The Seller must use the Property reasonably until settlement. The Seller must not do anything regarding the Property or Tenancies that may significantly alter them or result in later expense for the Buyer.
Mr Oliver for the plaintiffs relied on the defendants’ equitable interest, as purchasers, in the property pending completion of the contract, and on Clause 8 which placed the property at their risk. Those factors put them, he said, in a position of responsibility in relation to the property. That and their possession of special knowledge in the form of the building report put them into a relationship with the plaintiffs sufficient to give rise to a duty of care; or at least raised a question as to the existence of a duty which ought to be resolved at trial. It was possible that the plaintiffs’ position might be improved at trial when the degree of danger posed by the defective condition of the premises became clearer.
The purchasers’ interest is only to the extent of the relief which equity would give to enforce the contract. That interest gives them no control over the property’s management, and no interest in the existing tenancy. They have merely a capacity to seek the relief necessary to compel completion of the purchase and prevent any dealing with it inconsistent with their interest. Although their interest is described as equitable, their relationship with the vendor remains “essentially contractual”.[1]
[1]Chang v Registrar of Titles (1976) 137 CLR 177 at p190.
Unlike the defendant in Hill v Van Erp[2] the defendants did not by their contract (in this case with the vendor), undertake any responsibility which might give rise to a corresponding obligation to the plaintiffs. Although the property was at the defendants’ risk, they were not occupiers, and had no right or duty to repair. It is not pleaded, unsurprisingly, that there was any such duty. Possession remained with the vendor until settlement, and the defendants had only the limited rights of access afforded by Clause 8.2. There is nothing in the defendants’ contractual obligations which improves the plaintiffs’ position. In sum, that the defendants as purchasers acquired an equitable interest in the property, and that it was, under the terms of the contract, at their risk, seem to me to add nothing to the issue of whether there was a relationship between the defendants and the plaintiffs such as to impose on the latter a duty of care.
[2](1997) 188 CLR 159.
All that the plaintiffs can point to, to support the existence of a duty, is the defendants’ possession of the information as to the state of the floor. It does not seem to me that the fact that they came by that information as purchasers assists, since their position as purchasers created no relationship with the vendor’s tenants. The defendants were in the position of any bystander with knowledge of risk to another.
The boundaries of duty of care are, of course, by no means fixed. Attempts at a formula – reliance or proximity – have been discarded[3]. But it remains the case that foreseeability of harm alone cannot give rise to a duty of care:
“A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm in circumstances where the law imposes a duty to take such care.”[4]
[3]Sullivan v Moody (2001) 75 ALJR 1570 ; Tame v New South Wales(2002) 76 ALJR 1348.
[4]Sullivan v Moody (supra) at 1577.
And more particularly:
“The test of foreseeability of injury never has been applied as an exhaustive test for determining whether there is a prima facie duty to act to prevent injury caused by the acts of another or by circumstances for which the alleged wrongdoer is not responsible”.[5]
As Brennan J goes on to point out in his judgment in Sutherland Shire Council v Heyman, if foreseeability were the sole criterion of a duty to act, legal duty would be co-extensive with moral duty; and that is not the case.
[5]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 477.
The law relevant to omission to act to prevent harm is set out in the judgment of McHugh J in Pyrenees Shire Council v Day[6]:
“Nor does the common law generally impose any duty on a person to take steps to prevent harm, even very serious harm, befalling another. … The careless or malevolent person, who stands mute and still while another heads for disaster, generally incurs no liability for the damage that the latter suffers. … In the absence of a contract, fiduciary relationship or statutory obligation, the common law makes a person liable in damages for the failure to act only when some special relationship exists between the person harmed and the person who fails to act. … A special relationship may arise from the ownership, occupation or control of land or chattels, from the receipt of a benefit or from an undertaking, assumption of responsibility or invitation which might induce the person harmed to act or refrain from acting.”
[6](1998) 192 CLR 330 at 368-9.
Although in that case McHugh J dissented in part as to the result, his statements are consistent both with authority and with the approach taken in other judgments in the case. The conclusion of the majority was that the statutory powers held by the Council, giving it responsibility for and control of fire prevention, gave rise to a duty of care. But there is no such special feature identifiable in the present case. The defendants did not create the danger and they have not in any way assumed responsibility for the welfare of the plaintiffs. There is no reason to suppose that some hitherto unthought of connection will emerge should the case go to the trial.
The plaintiffs are not able to establish a fundamental element of the action for negligence: the existence of any duty of care on the part of the defendants. In those circumstances the action cannot succeed, and to suppose that there might be some sudden and unexpected extension of the law of negligence to accommodate them is to indulge in fancy. In those circumstances the defendants are entitled to summary judgment on the ground that the plaintiffs’ proceeding has no real prospect of success.
I give judgment for the defendants. Subject to submissions, it seems that they should have their costs of and incidental to the proceeding.
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