Jevline Pty Ltd v The Owners of Strata Plan 30656
[2007] WADC 136
•8 AUGUST 2007
JEVLINE PTY LTD & ORS -v- THE OWNERS OF STRATA PLAN 30656 [2007] WADC 136
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 136 | |
| Case No: | CIV:2237/2003 | 28-31 MAY 2007 | |
| Coram: | FENBURY DCJ | 8/08/07 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Claim dismissed | ||
| PDF Version |
| Parties: | JEVLINE PTY LTD (ACN 078 481 339) JULIE ANNE LOVELL NEIL WILLIAM TEARS THE OWNERS OF STRATA PLAN 30656 |
Catchwords: | Negligence Duty of care Causation Flooding of business premises Turns on own facts |
Legislation: | Nil |
Case References: | Jones v Bartlett (2000) 205 CLR 166 Ridis v Strata Plan 10308 [2005] NSWCA 246 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
JULIE ANNE LOVELL
NEIL WILLIAM TEARS
Second Plaintiffs
AND
THE OWNERS OF STRATA PLAN 30656
Defendant
Catchwords:
Negligence - Duty of care - Causation - Flooding of business premises - Turns on own facts
Legislation:
Nil
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Result:
Claim dismissed
Representation:
Counsel:
First Plaintiff : Mr A Metaxas
Second Plaintiffs : Mr A Metaxas
Defendant : Mr J R B Ley
Solicitors:
First Plaintiff : Arthur Metaxas & Co
Second Plaintiffs : Arthur Metaxas & Co
Defendant : Sparke Helmore
Case(s) referred to in judgment(s):
Jones v Bartlett (2000) 205 CLR 166
Ridis v Strata Plan 10308 [2005] NSWCA 246
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1 FENBURY DCJ: Late during the night of 29 March 2003 about 41 millimetres of unseasonal rain was recorded as having fallen in the Perth suburb of Swanbourne. The area surrounding the Mt Claremont Village Shopping Centre ("the Centre") in the nearby suburb of Mount Claremont was affected by flooding. Water flooded into a number of areas in the Centre including the hair salon known as Chelsea's for Hair and Beauty ("Chelsea's").
2 This action is brought by the plaintiffs who have or had an interest in Chelsea's, claiming damages for water damage to the flooring and loss of the business. They blame the corporate body of which of course they were members.
The general area and surroundings
3 The Centre is located on the north-west corner of the intersection of Strickland and Asquith Streets in Mount Claremont. Exhibit 5 is a plan of the site. The Centre is bordered by Strickland Street on the east, Asquith Street on the south, and a right-of-way on the west ("the ROW"). North of the Centre is a child care centre and some park land.
4 Photographs tendered in evidence show these areas. Exhibit 23, photographs 24, 25 and 26 show the ROW, although the ridge of darker looking bitumen running north/south bordering the ROW and the western side of the Centre carpark was not in existence on 29 March 2003. It was constructed soon after by the Nedlands Council. Exhibit 23, photograph 1 shows the Centre taken from the south-east corner of the intersection. Exhibit 23, photograph 2 shows the front of Chelsea's. Exhibit 24, photograph 1 and photograph 3 show the fence and border along the park land/child care centre to the north of the Centre.
5 It can be seen from the photographs of the ROW that it falls as it comes south towards the north western corner of the Centre carpark and it then levels out. What is not so obvious from the photographs is that as it runs past the carpark and approaches Asquith Street it gently climbs or inclines up to Asquith Street. On the night in question there were Nedlands Council soakwell drainage grates in the ROW which were there to deal with water coming down the ROW.
6 At the material time there were two soakwells in the carpark area of the Centre which were intended to deal with water that collected in that carpark. Various of the buildings that comprised the Centre discharged water, to some extent, onto the bitumen area of the carpark. By reference to Exhibit 5 it can be seen that Chelsea's was on the eastern side of the
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- Centre and that it backed onto the carpark. Its frontage was in Strickland Street.
7 There was a Nedlands Council drainage system of some design or other underneath the bituminised area covered by the ROW, Asquith Street and Strickland Street. Specifically there was a concrete inspection cover above part of the Council's drain between the south western corner of the Centre and the corner of the ROW and Asquith Street. The cement area where this cover is located appears at Exhibit 23, photograph 24 centre right; and photograph 27.
The flooding on the night of 29 March 2003
8 On the evening of 29 March 2003 Paul Harford who lived in a unit in the Centre above the newsagent on the north-east corner of the Centre was disturbed in his sleep by heavy rain. He got out of the bed to investigate and saw three to four inches of water on the ground floor of his unit. He went outside with a torch and walked to the courtyard of his back yard and opened the gate. He described the carpark as being totally awash. The soakwells in the carpark were under water.
9 Mr Harford walked to the ROW and saw water running down the laneway from the north and some of it going straight into the carpark. There was no sign of the soakwells in the laneway. They were under water.
10 Mr Harford went to Asquith Street. It was full of water. The concrete cover or lid on the Council drainage system near the south-west corner of the Centre had been lifted up, was sitting upon an angle, and water was gushing out of it. The water in Asquith Street appeared not to be dissipating. Mr Harford's observation was that as Asquith Street filled up with water it then began to wash back in a northerly direction up the ROW and then flood into the Centre carpark.
11 Mr Harford bought his unit in about 1996 or 1997. He rented it initially but moved into the unit in 2000 or 2001. He said he had never seen nor heard of water flowing down the ROW before, the Council inspection lid on its drains being forced out of its position nor water coming out of that drain as it did on the night in question. Mr Harford said the water was coursing from the west to the east across the carpark of the Centre. He was involved in the removal of some pickets along the northern boundary as can be seen in Exhibit 24, photograph 1 and photograph 3 to facilitate water draining away.
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12 Mr Harford said that the water had drained away by the next day and that since that time there had not been any similar problem of flooding in spite of occasions of heavy rain.
13 Mr Harford was cross-examined but unphased. He has no personal interest in this matter although he was a former member of the body corporate. His evidence is clear about the extent and direction of the flow of water in the ROW on the night in question and the primary source of all the water in the carpark. Mr Harford was an impressive witness. He made observations at the very time. He is an eye witness. I accept his evidence.
14 Mr Harford's memory about what was done in 2003 following the flooding is a little unclear. He did not remember having any dealings with a plumber though he was a member of the corporate body at the time. He can remember seeing a "quotation" for plumbing works which was Exhibit 39 from Choice Plumbing in the sum of $7,590. He thought it was too high.
15 William Harmer operated a newsagency in the Centre and had done so since about April 2001. His property was next door to Chelsea's. He was Chairman of the strata company in about 2003.
16 On the evening of 29 March Mr Harmer had had to deliver his teenage son to a party in Cottesloe and as he was engaged in delivery or collection, noticed after leaving his home that there was quite a deal of water about on the roads. He decided to check the newsagency at approximately 11.00 pm. He remembered thinking that the rain had been heavy, that it seemed "torrential" and he had seen so much water about on the roads that he decided he would check his property. He drove in off Asquith Street up the ROW. He observed water "billowing" out of the south-west Council drain having dislodged the concrete lid to which reference has already been made. There was water in the ROW.
17 In Exhibit 24 photograph 12 on p 391 of the papers, Mr Harmer is shown at the drain estimating the height of the billowing water.
18 To Mr Harmer the water appeared to be coming down the ROW. There was water lying about and in the carpark. He drove into the carpark took his shoes off and rolled up his trousers. He estimated there was six to seven inches of water in the carpark. He parked on the northern edge of the carpark. The whole carpark area was under water and it was not draining away.
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19 Mr Harmer went into his shop from the front door which was in Strickland Street. He observed water coming through underneath the back door. He observed water going away or down the access way on the north-east corner of the Centre. He said that he saw Paul Harford. He observed water escaping onto Strickland Street and he and Paul Harford took some pickets off the fence in the north-eastern boundary and water began to run through the spaces thereby made.
20 Mr Harmer got some sandbags and filled them and put them across the back door of his premises. In due course the rain stopped and the water commenced to recede.
21 Mr Harmer said that the soakwells in the vicinity were "choc-a-block" and that the majority of water was coming from the south-west drain in Asquith Street. The witness' attention was drawn to the map which is attached to Exhibit 43C being the third of the reports prepared by Barry Jones. The map shows, by green arrows, the fall of land and direction of water. It locates soakwell drains in the carpark of the Centre and also in the ROW. In terms of fall, and assuming the green arrows to be correct, it can be seen that if water failed to drain away and commences to accumulate and build up in Asquith Street it would eventually flow north in the ROW meeting any waters coming south. It can then be seen how water would flow into the Centre carpark.
22 Of course both Mr Harmer and Mr Harford indicate that all the soakwells were flooded. It seems from their and other evidence that the Council drain in Asquith Street near the south-western corner of the Centre overflowed because of lack of water disbursal downstream therefrom in the Council drain system or maybe the Minister's system.
23 On the following day Mr Harmer rang the Nedlands Council and drew their attention to the problem of the flooding drain. His recollection was that a truck arrived and pumped out various areas and that some time shortly thereafter the bitumen hump or levy that runs north-south along the east of the ROW and the west of the Centre carpark was installed. He stated the drains were upgraded so far as he could recall.
24 Mr Harmer had not seen any flooding like on that night in the two years prior to the incident. He said that the soakwells had always coped on previous occasions.
25 Mr Harmer said that since March 2003 there had been no other incidence of flooding nor water entering into his shop. His recollection
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- was that there had been quite a few occasions in that period when there had been heavy rain but there were no difficulties.
26 In cross-examination Mr Harmer said that he went to check his newsagency on the night in question because he "had a feeling", and not because of any relevant prior experience of flooding. Two facsimile transmission documents were shown to Mr Harmer by the plaintiff's counsel in cross-examination. These facsimiles were both sent by Mr Harmer.
27 Exhibit 49 was a facsimile sent to the Nedlands City Council by Mr Harmer on behalf of the Centre on 11 April 2003. After confirming a report to the Council of flooding on 29 March 2003 Mr Harmer wrote on 11 April that:
"The flooding is a result of water running off from Asquith Street and from water flowing down laneway. It is obvious that storm water drainage is inadequate to prevent the water from flooding into the carpark at the rear of the shopping centre."
28 The facsimile goes on to complain of similar "flooding" having occurred on 11 April which would have caused damage but for sandbagging and seeks immediate remedial action.
29 Endorsed on the facsimile, presumably by somebody from the Nedlands Council, is the following:
"Al, I met Bill on site we will construct three asphalt banks in our ROW to stop water entering their property. I have also arranged for our three soakwells and one block drainage pit in the area to be (illegible – looks like "ecluded" but I have no doubt it means cleaned out or pumped out of something like that) (my parenthesis) today Wednesday 16.4.03. But as I explained to him they have a problem with only two small soakwells on their carpark and all their downpipes run onto the asphalt and into soakwells."
30 Mr Harmer was cross-examined on his reference to a report that "today similar flooding occurred" suggesting there was similar flooding on 11 April to that which occurred on 29 March. Mr Harmer was unable to recall details but did not agree that anything like the same flooding occurred on 11 April as occurred on 29 March.
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31 The other facsimile shown to and tendered through Mr Harmer was one sent by him on 18 September 2003 again to the Nedlands City Council and again on behalf of the Centre. This became Exhibit 50.
32 Again Mr Harmer expresses the view that the flooding that occurred on 29 March 2003 was caused as a result of heavy rain on that day and "the blockage of storm water drain outside the patisserie flooding to numerous shops in the complex."
33 Mr Harmer then states:
"Your record should indicate that remedial action was taken to unblock the drain as well as the installing of bitumen humps to divert water away from laneway adjacent to rear of shopping centre."
34 Mr Harmer also stated:
"I have been an owner of my strata for two and a half years and during that period no flooding problems have occurred, nor have we had any flooding problems since 29 of March 2003 despite heavy rainfall."
35 These two facsimiles were sent by Mr Harmer on behalf of the Centre and it appears more particularly on behalf of Chelsea's although that is not certain. Of the various retail outlets in the Centre it seems that Chelsea's was the only business that did not have contents insurance and suffered uninsured water damage.
36 It seems to me these two facsimiles are also significant, and especially Exhibit 49, because they amount to contemporaneous prior consistent statements about Mr Harmer's view on causation. Obviously he was a member of the corporate body, perhaps the Chairman at the time, he was covered by contents insurance and was dealing with a claim that might be said to be looming from one of the members in the complex, possibly against the corporate body and/or the Council. Nevertheless, he made fairly contemporaneous written reference to the significance of the failure of the Council stormwater drainage system outside the property as being the major factor involved in the flooding.
37 As with Mr Harford, Mr Harmer gave very convincing evidence. I cannot see he would have any reason to wish to mislead the Court. His evidence is consistent with Mr Harford. He was an eye witness, like Mr Harford.
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38 Both these witnesses had a much better look at what occurred on the night in question than did Mr Neil Tears, one of the plaintiffs.
39 Neither Mr Tears not Julie Lovell, the second plaintiffs, saw the flooding of the Centre at its peak. Mr Tears attended Chelsea's on the Sunday, well after, it seems, water had receded. He saw water running out from underneath the front door into Strickland Street. When he opened Chelsea's there was a black slurry on the floor and the floorboards squelched. He spent all day cleaning up.
40 Mr Barry Jones is an architect and registered builder. He runs a business that has been established in Western Australia since 1989. As his curriculum vitae discloses, he has 35 years experience in the building industry "involving design, project management and construction of small and large buildings and developments".
41 Mr Jones is not a specialist drainage engineer. However, it seems to me that much of the intellectual property that might be said to relate to soakwells and drains and the like is founded upon fairly basic physics and likely to be well within the grasp of a man like Mr Jones. Mr Jones visited the site and made a number of measurements and the like, and I shall refer to his evidence a little later but it is relevant at this stage to refer to his view about the matter, having been briefed by what eye witnesses had disclosed. It was his view that the flooding was a result of too great a deluge of rainfall for a traditionally designed storm water disposal system to cope.
42 That seems to me, having regard to the evidence of Messrs Harmer and Harford, to be glaringly obvious.
The cause of flooding
43 The failure of the water disposal system comprising the soakwells and drainage installed by the Nedlands Council in its area of responsibility, namely the ROW and Asquith Street, is striking. I cannot see how the adequacy or not of soakwells in the Centre carpark significantly bears upon the matter. Water flooded into the carpark from Asquith Street up the ROW, and down the ROW, because of the deluge, not because of clogged up, or inadequate soakwells in the carpark itself. Detailed analysis and calculation of roof areas and proportions of cubic metre soakwell capacities versus roof area ratios and the like is really not the key to the case it seems to me. In any event, the opposing arguments about adequacy of soakwells in the carpark make it difficult to conclude any particular view to the required standard. There is apparently good
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- reason to suspect the presence of another soakwell or two underneath the bitumen of the carpark. (See Exhibit 43C – report of Jones). With that clear possibility in mind, any assertion that by reference to cubic capacity the number of soakwells were inadequate is suspect.
44 It seems to be the essence of the plaintiffs' case that there had been reported problems with drainage previously and that what occurred on the night in question was simply a foreseeable event exacerbated by ignored soakwell difficulties brought to the attention of the powers that be from time to time.
45 It seems to me based on the evidence of Messrs Harford and Harmer that this was an exceptional night of rain and that, as I have mentioned, it was the failure of the Council drainage system that caused this flooding. Even if there had been a greater capacity of soakwell in the Centre carpark I am far from convinced it would have made any difference at all to the extent of flooding on the night in question, given the description of that flooding and the fact, as observed by Mr Jones in his report of 27 February 2007 p 3, Exhibit 43C that the grill of the nearest soakwell to Chelsea's is 150 mm below Chelsea's floor level. As he put it:
"It would appear that in the event of storm water soakwell No 2 filling to capacity the lower part of the carparking area could support approximately 30 cubic metres of storm water prior to water surcharging over the rear door threshold into the subject shop."
46 I am not convinced that any failure on the part of any entity relative to the Centre carpark soakwells and drainage system had any significant causative effect in the flooding of Chelsea's on the night of 29 March 2003.
The pleadings
47 Par 6 and par 7 of the plaintiffs' statement of claim reads as follows:
"6. As the occupier of the roof of the complex and the carpark the first defendant owed to the plaintiffs a duty to exercise reasonable care to avoid a reasonably foreseeable risk of injury or damage to the plaintiffs' property.
7. In breach of the duty pleaded in par 5 (sic 6) above, the first defendant failed to exercise reasonable care to avoid
- a reasonably foreseeable risk of injury or damage to the plaintiffs' property in the shop insofar as the first defendant:
- 7.1 took no steps to install additional soakwells in the carpark with sufficient capacity to drain rain water falling onto the carpark;
7.2 failed to lower the level of the carpark so that it was lower than the courtyard at the rear of the shop;
7.3 failed to grade the carpark so that water gathering thereon and draining towards the rear of the shop would run away from the shop;
7.4 failed to take any steps to stem the risk of flooding to the shop notwithstanding by complaints by the plaintiffs in each year from 1998 onwards."
48 At the hearing the plaintiffs solely relied on the assertion put in par 7.1, counsel in effect abandoning the other three assertions of failure in his final address to the Court.
49 In essence the plea was to the effect that the defendant knew the soakwells in the carpark were inadequate and had insufficient capacity to deal with rain water falling onto the carpark bitumen surface and discharged onto the carpark surface from unearthed downpipes at various places about the Centre. This knowledge of the inadequacies of the soakwells was said to derive from multiple complaints made from time to time by others including the plaintiffs over previous years.
50 As I have all but indicated above, I think a major stumbling block for the plaintiff's case is the question of the cause of the flooding on 29 March 2003. I have found that it was the quantity of water coming down the ROW which collected on Asquith Street and then back-flowed into the Centre carpark which caused flooding and damage in the plaintiffs' shop. Putting that issue aside for the moment I shall now consider the question of the defendant's duty of care and whether there has been a breach of that duty as pleaded.
51 It is notable that it is an alleged failure to install additional soakwells which is said to be a breach of the duty, and that there is no assertion of
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- failure to clean out and maintain existing soakwells. In passing I would reiterate that the shear quantity of water about which the witnesses spoke suggests that even if soakwells had been cleaned out it would not have made any difference.
52 Counsel for the defendant placed some emphasis on the helpful analysis conducted by McColl JA in the decision of the New South Wales Court of Appeal in Ridis v Strata Plan 10308 [2005] NSWCA 246 which is reported in (2005) 63 NSWLR 449. I agree that this is a helpful analysis and I refer to and rely upon it.
53 In Ridis' case the extent of the duty of an owner's corporation in a strata title to maintain and repair common property was considered. A plaintiff was injured by a glass door in the premises shattering on impact in normal use. The door was apparently in a state of good repair and undamaged. The Court found that the Strata Schemes Management Act 1996 NSW, imposed an obligation to exercise reasonable skill and care which required a system for monitoring the maintenance and state of repair of common property but did not impose a duty to obtain assessment of the premises by specialist experts on the question of safety.
54 In the case at hand it is alleged that the corporate body "took no steps to install additional soakwells in the carpark with sufficient capacity to drain water falling onto the carpark."
55 It is not alleged there has been a failure in maintenance or repair and as I have previously observed it is not pleaded that clogged up soakwells in the carpark was a factor.
56 This case therefore raises a similar question as in Ridis being whether the defendant should have obtained expert advice about the adequacy of soakwells and, assuming the advice would have been to put in additional soakwells, whether it should have attended to the installation of those additional soakwells.
57 McColl JA in her reasons stressed the importance of recognising that an owners' corporation is simply a body which comes into existence on the registration of a strata plan. It is not the builder, the vendor or a landlord but is a statutory corporation created by legislation for a particular purpose which is limited in its powers. Her Honour observes that an owners' corporation is the occupier of the common property by virtue of its management in control of the use of that area. However it carries out its obligations of management and control as a representative
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- of, and for the benefit of, the lot proprietors (paraphrased from par 116 and par 117).
58 Her Honour reminds us that an owners' corporation derives any funds it requires to discharge its obligations from lot proprietors which it would usually obtain by levy but further observed that it needs to be recognised that an owners' corporation does not have access to the resources available to a public authority or commercial organisation.
59 Her Honour discussed occupier's liability and an occupier's duty to take reasonable care to protect entrants from foreseeable risks of injury observing that an occupier is however under no duty to inspect premises for the purposes of discovering unknown and unsuspected defects. Pausing there and returning to the case at hand, the plaintiff alleges that the defendant (the occupier) knew the soakwells in the carpark did not have sufficient capacity to drain water from heavy rain falling onto the carpark. It is based upon that alleged knowledge that the plaintiff asserts the defendant had a duty to install additional soakwells. I shall deal with this issue shortly.
60 McColl JA then discusses the obligation of maintenance and repair that a corporation has referring to Jones v Bartlett (2000) 205 CLR 166 and observes that an owners' corporation is not obliged to conduct or procure the conduct of an expert assessment of every possible source of danger in the common property.
61 At par 187 her Honour captures the issue as follows:
"In my view, prima facie, the question whether the owners' corporation has discharged its…duties of maintenance and repair is to be judged by whether an 'ordinary person' in the owners' corporation's position 'would or should have known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps'… Jones v Bartlett.
Soakwell issues prior to 2003
62 Returning to the plaintiffs' case, as I have mentioned, it is asserted that the defendant was aware of the inadequacy of the carpark soakwells to drain heavy rain water falling onto the carpark.
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63 The evidence established that there had been occasions prior to March 2003 when issues about the effectiveness of soakwells in the carpark had arisen and been addressed.
64 One significant issue arose because of additions made to the buildings in the Centre. As can be seen in Exhibit 5 on the eastern side of the Centre south of the boutique, which was adjacent to Chelsea's, there is a structure captioned "store…additional 51 square metres to hardware".
65 Previously this area was unimproved and amounted to a laneway that ran out into Strickland Street. Rain water drained away down that driveway into Strickland Street. When the additions were made to the hardware store, water no longer was able to drain down that driveway.
66 Exhibit 39 is a quotation dated 23 September 1999 from Choice Plumbing. It appears this quotation was obtained following the effect on carpark drainage of the construction of the extension to the hardware store. Graham Cormack of Choice Plumbing quoted for the installation of three further soakwells all to be interconnected with 100 millimetre PVC in the sum of $7,590.
67 From minutes of the Annual General Meeting of the owners of premises in the Centre held on 1 November 1999 (Exhibit 46), the meeting having been adjourned from 25 October due to lack of a quorum, at item 6(i) of Special Business the following appears:
"Rear soakwell
The owners of the rear courtyards have informed us in the last few months that when there was heavy downpours these have been filling up the courtyards and in some cases going into the stairwell areas. We had a plumbing contractor visit the site, being Choice Plumbing, they forwarded us a report which you have received which tells us that the soakwells are inadequate for the area.
The cost to replace these soakwells is a very expense exercise and it was recommended in the meeting that we periodically inspect the soakwells and have them cleaned out on a regular interval. We will then see if this overcomes the problem, if not readdress the issue." (sic)
68 A further quote on 16 February 2000, which is Exhibit 4, in the sum of $2,550 was obtained. This quotation was for the "supply and install
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- 25 metres of 100 mm PVC drain to rear soakwell to relieve the flooding problem rear of hardware store" (sic). This work was done and the cut in the asphalt surface of the carpark required to install the connecting pipe, which was replaced afterwards with newer darker asphalt, can be seen in Exhibit 24, photograph No 10.
69 Mr McCormack also gave evidence of having attended on other occasions to pump out soakwells that contained stagnant undistributed water such as appears in Exhibit 23, photograph 20. These soakwells appear in the plan attached to Exhibit 43C being the two square red grates that are in the north west and south east corners of the carpark. The plan also shows the location of the inter-connecting PVC pipe to which I have just referred.
70 This evidence seems to me to show that the defendant took issues about drainage in the Centre seriously. It behaved reasonably in seeking to raise issues with the Nedlands Council about off-site problems. It addressed on-site problems.
Evidence of plaintiffs about defendant's knowledge
71 I turn to the evidence of the plaintiffs about alleged issues of long standing drainage and flooding problems at the Centre. Mr Neil Tears, one of the plaintiffs, is a carpenter by trade and a builder by profession of some 40 years experience. Mr Tears and Julie Lovell were guarantors of the obligations of Jevline Pty Ltd which leased the property on about 1 August 1997 (Exhibit 2). Mr Tears said that Julie Lovell carried out the work in the salon and he tended to concentrate on administrative aspects of the business. Mr Tears said that from 1997 until prior to March 2003 the soakwell near the back gate of the premises frequently filled up and water lay upon it. He said there were obvious concerns about flooding. Water occasionally came up to the back door of the premises but did not enter. He said he complained to the managers and took steps to impede the entry of water into the premises. He said that every winter, around June, over a period of four years, "we rang managers from time to time".
72 Mr Tears discovered the damage following the heavy rain on the night of 29 March 2003 on the following day, the Sunday, when he attended the shop.
73 I have already mentioned that it seems that Chelsea's did not have contents insurance and were not covered for damage to the floor of their premises.
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74 Exhibit 6 is a copy of a memorandum from Mr Tears on behalf of Chelsea's to Property Masters who presumably managed the premises. This was written on Monday, 31 March 2003. Mr Tears speaks of the storm on the night of 29 March and states that, "our shop has been flooded" and "the floors damaged" due to inadequate and poorly maintained stormwater drainage system at the shopping centre". Mr Tears also states in a letter that: "This is not the first time this has happened and we have complained to the previous property manager that this has occurred."
75 In his evidence Mr Tears agreed that the letter was not completely truthful in what it stated.
76 Mr Tears gave evidence that on Sunday, 10 August, at about 7 pm he entered the shop and saw that water had gone under the door and across the floor to the kitchen sink. Exhibit 4 was a rough plan indicating in red the extent of the water. This did not cause any damage and Mr Tears took no steps in respect of it save that on 11 August he wrote a letter to a Mr Scala of Eden King Holdings, Exhibit 12, where he reports the entry of water into the rear of the shop. It was unclear whether the water got there by flooding. I doubt it.
77 Mr Tears stated in cross-examination that there had been more than one occasion prior to March 2003 when the soakwells were seen to be full and water had come up to the back door of the premises. He said that the reference in Exhibit 6 to flooding before was a reference just to water coming up to the back door. He said that he had complained on one previous occasion. This of course is inconsistent with what he said in the letter, Exhibit 6, as I have mentioned. Mr Tears said that he made complaints as did his partner, Ms Lovell. He said that these problems occurred every winter. He said that he could not remember attending any meeting on 1 November 1999 about pooling. I note that he is not recorded as having attended the meeting. (Minutes Exhibit 46).
78 Mr Tears was shown the quotation from Choice Plumbing but could not remember having ever seen it. This is curious given that he was the lessee of the premises prior to the issue the subject of that letter arising. He could not remember much about what was done or sought to be done by Choice Plumbing but did agree that he saw a fresh line of bitumen in the paving of the carpark.
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79 Mr Tears denied that there were no problems with flooding after the work was done and said that the problem continued every winter. He was quite emphatic about this.
80 Mr Tears was also emphatic that on the night in question, although he did not attend there until the Sunday morning, that no significant quantities of water had come down the right of way. He remembered that Mr Harmer had said that it had occurred but he did not accept what Mr Harmer stated. He said that Mr Harmer had told him the water had come into the carpark from Strickland Street.
81 Mr Tears was shown the pleadings in an action in the Magistrates' Court brought by Eden King Holdings Pty Ltd against Jevline Pty Ltd and himself and Ms Lovell for outstanding rent. His attention was drawn to the defence filed on his behalf and that of Ms Lovell which asserted:
"10. On the 10th August 2003 the leased premises was again inundated by water which entered by means of the rear entrance abutting the carpark.
11. By further notice in writing from the first defendant to the plaintiff dated 1lth August 2003 the first defendant informed the claimant, in effect, that flood water had again entered the leased premises and that the first defendant would have to cease operating the business."
82 Those pleadings comprise Exhibit 25.
83 Mr Tears agreed that it was inaccurate and wrong to describe the premises as having been "inundated" on 10 August and that "flood water" had entered on that occasion. There was wetness on the flooring in a small area near the kitchen bench.
84 In re-examination Mr Tears said that Mr Harmer had contacted him and had told him that the whole of Asquith Street and Strickland Street had been flooded and that water had come into his shop from Strickland Street. Mr Tears said that he accepted and confirmed this by the way mud had been deposited in his shop. In later conversation Mr Tears said that Mr Harmer told him that he was wrong and that water had come from the right of way at the back of the shop. Some discussion followed and Mr Tears stated that he had said a factor in the flooding was the extension to the hardware store blocking up the laneway area through which water had in years past discharged onto Strickland Street.
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85 I had some sympathy generally for Mr Tears' position, given that there was no contents insurance, but on the issue of what flooding had occurred and what had been done about it prior to March 2003 he was unconvincing. On the issue of the source of water on the night in question, of course, he was not on location like Messrs Harford and Harmer. He arrived the following day.
86 Ms Lovell, Mr Tears' partner, and manageress of Chelsea's, stated that from the winter of 1998 there were problems with rain water in the courtyard of the premises. The courtyard filled with water and water threatened to enter the property but never actually did so. She used to pull bricks up at the threshold of the door to allow drainage. She said that she told the managing agent on many occasions of the problem from the time she and Mr Tears commenced business in the premises. She gave the names of people that she said she rang. She said on one occasion a truck was sent to pump out water and that she felt that this was about 1999. Ms Lovell said she often observed water gathering in the courtyard and she would pull up the bricks. She made complaints every year prior to 2003 but "nothing changed". She said nothing was done to address the problem she had complained about.
87 In cross-examination, Ms Lovell said that in 1998 there was a problem with flooding and a large truck came and pumped out a soakwell. She was adamant that this occurred on the same day that a pipe was laid between two soakwells. Her evidence was that the pipe laid between two soakwells made no difference to water coming into the courtyard whatsoever. She said that whatever was done did not work and problems in winter continued every winter in the four years prior to March 2003.
88 In Answers to Interrogatories filed on behalf of the plaintiffs in respect of the identity of the complainant about soakwell problems, on all occasions it was said to be Julie Lovell. This is obviously inconsistent with the evidence of Mr Tears to the effect that he also made complaints.
89 I do have some concerns about the evidence of both Mr Tears and Ms Lovell as to events prior to March 2003, as to complaints that they allegedly made and the terms and frequency of those complaints. Their evidence seems contrary to other evidence about the effect that measures taken from time to time by the defendant had upon water problems in the property.
90 I do not think it necessary to make specific findings about the credibility of Mr Tears and Ms Lovell because there is no suggestion that
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- there had ever been anything like the flooding that occurred in March 2003 in the recent memory of any persons having anything to do with the Centre. I do not accept Mr Tears and Ms Lovell complained as frequently as they say about problems in the soakwells on prior occasions. On the other hand there is no doubt the defendant was aware of some difficulties from time to time and it equally seems to be that reasonable steps were taken by the defendant to address those difficulties.
91 The parties adduced expert evidence in the trial. These experts were mainly preoccupied in calculating the area of roof and carpark surface space seeking to establish whether the recommended council ratio of 1 cubic metre soakwell capacity to 80 square metres of water collecting surface area was followed. There are a number of variables that make the exercise difficult of evaluation. A factor that does concern me is the difference between the capacity of a soakwell based upon the dimensions of the concrete ring or rings used to build it, being the theoretical capacity, and the capacity in fact of soakwells that have been in use for a considerable period of time and have accumulated an unknown quantity of debris.
92 The other factor that causes me concern is the view of Mr Jones, a witness called by the defendant, that there must be another soakwell or soakwells under the asphalt in the carpark required to receive storm water gully water. Mr Jones' view is that there are storm water gullies in the premises which must discharge into some soakwell like structure, somewhere, and given that it is not known where it is, it is a variable that tends to make the arithmetic somewhat problematic. I refer particularly to his second report, Exhibit 43B.
93 The calculations upon which each expert laboured are not determinative of this case in my view. Because of alterations in measurement they became quite confusing anyway. I am not able to find one way or the other whether there are sufficient soakwells in the carpark to comply with the unspecified council preference that there be one cubic metre of capacity in soakwells for every 80 square metres of roof or carpark surface. Again, as I have attempted to explain earlier, I am not convinced on the evidence that the flooding was significantly affected by any particular failure, if there was any, in the soakwell drainage system that existed in the carpark. On balance Mr Jones, who was the expert called to give evidence on behalf of the defendant, seemed to me to be more impressive as a witness than Mr Wakefield called on behalf of the plaintiffs. A factor in that is that Mr Jones climbed into soakwells and measured them whereas Mr Wakefield did not.
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94 In my view the defendant had some awareness prior to March 2003, from time to time, that there were occasional difficulties of drainage in the Centre's soakwells in the carpark. These difficulties had been reasonably addressed and as at March 2003 there had not been any significant incidence of flooding of premises.
95 The flooding of the plaintiff's premises that occurred on the night of 29 March 2003 was a result of the failure of the council off-site drainage system to deal with the inordinately large amount of water that came down the ROW. The flooding was not caused by any failure in the soakwells of the Centre. There was no obligation upon the defendant to install additional soakwells in the carpark. This possibility had been considered in 1999 but was found to be too expensive. Other steps were taken which alleviated the difficulties of water disposal in the carpark. In my view even if there had been an extra soakwell it is unlikely to have made any difference given the enormous quantity of water that Messrs Harford and Harmer described as being present on the night of 29 March 2003.
96 The first and second plaintiffs have failed to prove that the defendant was negligent.
Damages
97 As to damages, I do not propose to embark upon an assessment. This is for two reasons. Firstly, the majority of the claim comprises a claim for loss of the hairdressing business which is said to be valued at about $30,000. That valuation aside, the claim is difficult to accept given the evidence surrounding the circumstances of closure of the business. According to Ms Lovell and Mr Tears the business was initially closed in an effort to demonstrate to the defendant that the plaintiffs wished to have their claims taken seriously.
98 Secondly, the main damage done by the flooding was to the wooden floor of Chelsea's which became smelly and unsightly. It is quite clear that prior to this very unfortunate event the salon was a very attractive and well designed area of business (see Exhibit 3). Mr Tears was a qualified carpenter and it was he who had installed the floor initially The floor needed to be replaced. I have no doubt Mr Tears had the ability to repair or replace the floor for a modest expense. It was not a matter which required such drastic measures as to close the business. In short, the plaintiffs have not only failed to mitigate their damages but, in my view, acted precipitously and unnecessarily in taking measures which
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- exacerbated their loss. Any damages to which they may have been entitled, would be minimal.
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