Jones Lang LaSalle (NSW) Pty Ltd v Taouk
[2012] NSWCA 342
•24 October 2012
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 Hearing dates: 17 April 2012 Decision date: 24 October 2012 Before: McColl JA at [1]
Meagher JA at [2]
Sackville AJA at [92]Decision: (1) Applicant's summons seeking leave to appeal dismissed.
(2) Extend the time for the appellant to file its amended notice of appeal to a date seven days after the date of this order.
(3) Direct the appellant to file and serve its amended notice of appeal within seven days of the date of this order.
(4) Appellant's amended notice of appeal dismissed.
(5) Second respondent's notice of appeal dismissed.
(6) Applicant/appellant to pay the first respondent's costs of the summons seeking leave to appeal and of its appeal.
(7) Second respondent to pay the first respondent's costs of its appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: NEGLIGENCE - duty of care - plaintiff slipped on grease on surface of car park - escaped from grease trap under control of building manager - content of duty of care owed by car park operator to avoid risk of slipping on car park surface - whether hourly inspections would have prevented accident - grease trap alarm system known to be faulty - content of duty of care owed by building manager - whether regular inspections of grease trap would have prevented accident
NEGLIGENCE - apportionment - whether primary judge erred in concluding car park operator primarily at fault as best placed to deal with risks and safety
EVIDENCE - admissibility - whether primary judge erred in rejecting tender of documentary evidence - tendering party's obligation to make clear purpose and basis of tender - ordinarily no "improper" rejection of evidence if grounds which would justify tender not argued before primary judge.
PROCEDURE - amendment - joinder - oral application to amend and join additional party - no notice of motion served - challenge to exercise of discretion to dispense with filing and service of notice of motion and to grant leave to amend - no House v The King error - Civil Procedure Act, s 64Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
District Court Act 1973
Evidence Act 1995
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure RulesCases Cited: Adamson v Ede [2009] NSWCA 379
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Australian Securities and Investment Commission v Rich [2005] NSWSC 417; 216 ALR 320
AV Jennings Pty Ltd v Maumill (1956) 30 ALJ 100
Barescape Pty Ltd v Bacchus Holdings Pty Ltd (No 5) [2011] NSWSC 1307
Bennett & Co v Connors [1953] St R Qd 14
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Dainford Ltd v Yulora Pty Ltd [1984] 1 NSWLR 546
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; NSWCCR 389
Doe d Kinglake v Beviss (1849) 7 CB 456; 137 ER 181
Dun v Macintosh [1906] HCA 24; 3 CLR 1134
East West Airlines Ltd v Turner [2010] NSWCA 53; 78 NSWLR 1
Engebretson v Bartlett [2007] VSC 163; 16 VR 417
Evans v The Queen [2007] HCA 59; 235 CLR 521
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
Greater Lithgow City Council v Wolfenden [2007] NSWCA 180
Honeybone v Glass [1908] VLR 466
House v The King [1936] HCA 40; 55 CLR 499
Jones v Bartlett [2000] HCA 56; 205 CLR 166
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408
Kwan v Kang [2003] NSWCA 336
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305
Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867
McLean v Kalanda Constructions Pty Ltd (Supreme Court of Queensland, Court of Appeal, unreported, 20 June 1995)
Metwally (No 2) v University of Wollongong [1985] HCA 28; 59 ALJR 481
National Australia Bank v Rusu [1999] NSWSC 539; 47 NSWLR 309
National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; 10 CLR 1
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Potts v Miller [1940] HCA 43; 64 CLR 282
R v Bryant (No 2) [1956] St R Qd 570
Rex v Grant (1834) 5 B & Ad 1081; 110 ER 1092
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263; 77 NSWLR 360
Rose v Abbey Orchard Property Investments Pty Limited (1987) Australian Torts Reports 80-121
Smith v The Queen [2001] HCA 50; 206 CLR 650
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
South Australia v Ellis [2008] WASCA 200
Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267
Tarabay v Leite [2008] NSWCA 259
Teubner v Humble [1963] HCA 11; 108 CLR 491
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Wyong Shire Council v Shirt [980] HCA 12; 146 CLR 40Texts Cited: Chitty's Archbold's Practice of the Queen's Bench Division of the High Court of Justice, 14th ed (1885) Vol 1
Lush's Practice of the Superior Courts of Law, 3rd ed (1865) Vol 2
Phipson on the Law of Evidence, 9th ed (1952)
Roscoe's Evidence in Civil Actions, 20th ed (1934) Vol 1
Taylor, Law of Evidence, 11th ed (1920) Vol 2
Wigmore on Evidence, 3rd ed (1940) Vol 1Category: Principal judgment Parties: Jones Lang LaSalle (NSW) Pty Ltd (Applicant/Appellant)
Bashir Taouk (First Respondent)
Wilson Parking Australia 1992 Pty Ltd trading as Wilson Parking (Second Respondent)Representation: Counsel:
D F Villa (Applicant/Appellant)
M J McAuley (First Respondent)
W S Reynolds (Second Respondent)
Solicitors:
Minter Ellison Lawyers (Applicant/Appellant)
C & M Lawyers, Harris Park (First Respondent)
Eakin McCaffery Cox (Second Respondent)
File Number(s): CA 2007/289319 Decision under appeal
- Date of Decision:
- 2011-05-06 00:00:00
- Before:
- Delaney DCJ
- File Number(s):
- 147 of 2007
Judgment
McCOLL JA: I agree with Meagher JA's reasons and the orders his Honour proposes.
MEAGHER JA: Late in the evening of Saturday, 5 March 2005 the first respondent (Mr Taouk) sustained serious injuries to his left knee when he slipped and fell on grease and oil on the concrete floor of level two of the car park in Australia Square Tower in Sydney. That grease and oil had escaped from a container inside a grease trap room at the northern end of the car park. At the time he slipped, Mr Taouk was walking to his car which was parked with its passenger side facing and parallel to the southern exterior wall of the grease trap room. The locked door to that room was in that southern wall.
The grease trap collected waste from commercial premises in Australia Square Tower. The appellant (JLL) provided property management services to the owners of that building. The second respondent (Wilson) managed and operated the three level car park in the Tower. Notwithstanding that access to the door to the grease trap room was obtained via level two of the car park, Wilson did not have keys to that door and the room itself was not part of the car park area managed and operated by Wilson. It was, however, together with the car park, part of the area in respect of which JLL provided property management services to the owners.
Mr Taouk succeeded in his claims against Wilson and JLL. In a judgment delivered on 6 May 2011 Delaney DCJ (the primary judge) entered judgment against each for $219,327 and apportioned liability between them so as to require JLL to contribute 30 per cent and Wilson to contribute 70 per cent. Each of JLL and Wilson appeals from those judgments on liability issues. Wilson also appeals against the apportionment of liability as between it and JLL.
The issues raised by JLL's Amended Notice of Appeal include whether the primary judge erred in giving Mr Taouk leave to join JLL as a party after the hearing had commenced and in rejecting the tender by JLL of six documents. An understanding of those and the other issues in the appeals is assisted by a summary of the course of the proceedings and of the significant findings made by the primary judge.
The proceedings at first instance
In June 2007 Mr Taouk commenced proceedings in the District Court against Wilson. In February 2008 he joined Greasetrap Cleaning Services Pty Ltd (Greasetrap) and Reliance Cleaning Group Pty Ltd (Reliance) as defendants. After an earlier hearing date had been vacated, the proceedings were listed for hearing on 22 October 2009.
On 14 October 2009, the primary judge dismissed an application by Wilson for leave to cross-claim against JLL and to vacate that hearing date. JLL was given notice of and sought to be heard in opposition to that application. Reliance also opposed the application because it would necessarily delay the hearing of the proceedings. Greasetrap was not represented at the hearing of the application and on 21 October 2009 Mr Taouk's claim against it was discontinued. The hearing against the remaining defendants, Wilson and Reliance, commenced on 22 October 2009. Mrs Taouk was the first witness called and at the conclusion of her evidence the further hearing was adjourned to 7 December 2009.
On 7 December 2009 the primary judge gave leave to Mr Taouk to file by 22 January 2010 an amended statement of claim noting that, with that leave, Mr Taouk could "join whoever you want"; clearly intended to enable the joinder of JLL as a defendant. By that time Reliance, which had opposed Wilson's earlier application to join JLL, had ceased to be a party and the order giving leave to amend was not opposed by Wilson (no doubt because it would then have an opportunity to file a cross-claim against JLL). JLL was not present on 7 December when that leave was given.
On 21 January 2010 a second amended statement of claim, which joined JLL as fourth defendant, was filed. There were then cross-claims filed by which each of Wilson and JLL claimed contribution from the other as a joint tortfeasor. The hearing resumed on 20 July 2010. JLL did not at any time seek to set aside the order permitting its joinder or to strike out the claim against it or to have it summarily dismissed. Nor did it seek a stay of the proceedings against it. However, JLL did seek and obtain an order, pursuant to s 136 of the Evidence Act 1995, that evidence of Mrs Taouk of conversations which she had with a security officer at the time of the accident, could not be used as evidence against it. The hearing concluded on 21 July 2010.
The relevant findings of the primary judge
Mr Taouk and Mrs Taouk (then his fiancée) drove into the car park at about 8.00pm. Because it was a Saturday night, only level two of the car park was available for use. Mrs Taouk was driving. They did not see any grease or oil on the floor of the car park in the area adjacent to the grease trap door. They dined at a restaurant in The Rocks and returned to the car park between about 11.00pm and 11.30pm. The accident happened at this time. Where Mr Taouk slipped, the concrete floor was covered by grease and oil over an area about two metres wide extending from the grease trap door. The evidence as to how far from the door the spill extended was not consistent. The estimates varied from about two to five metres: [25], [31], [86], [89]. Mr Taouk slipped at the outer edge of that area as he approached the rear and passenger side of the car. Evidence was given that there was a "fair amount" of grease, that the floor was "greasy" and that there was "grease" on Mr Taouk's jeans after he fell: [25], [30], [31], [86].
The primary judge found that the overflow of grease and oil onto the car park surface happened sometime after Mr and Mrs Taouk arrived at the car park and before they returned to their car: [62], [83]. That finding is not contested on appeal. He also found "from the description of the appearance of the spillages" given by them that "more likely than not the spillage began not less than one hour before they returned to the vehicle". Although the primary judge did not say so explicitly, his Honour's reference to when the "spillage had begun" must be understood as being to the time when the grease or oil first emerged from underneath the door and flowed over the car park floor. That is because he equates the time when the spillage began with when the liquid would first have been "present and able to be seen on inspection": [91]. This finding was said to be based on the static appearance of the spill, the area it covered and its appearance as shown on photos in evidence.
In Mr Taouk's case against Wilson, the primary judge found that a "reasonable regime of inspection" for a car park operator on a Saturday night would have involved an inspection of the car park for hazards at least once every 30 minutes between 5.00pm and 12.30am: [75]. His Honour held that Wilson was in breach of its duty of care in failing to have a system requiring such inspections. Because of the finding that the spillage was first "able to be seen on inspection" at least one hour before Mr Taouk returned to the vehicle, it followed that he would not have been injured had there been a system which resulted in inspections at least once every 30 minutes or so: [91], [92].
In Mr Taouk's case against JLL, the primary judge found that at the time of the accident there was an irregularity in the operation of an alarm system designed to warn when the grease and oil in the grease trap container had reached a particular level: [118]. There was a float inside the tank which held the grease and oil. When the fluid reached a certain level, causing the float to rise, a mercury switch would close. When the switch was closed, a signal was sent to what was described as the "building management control system". If that signal was sent for a period of more than 10 seconds (because the mercury switch was closed for at least 10 seconds) an alarm was triggered and that alarm would register at four places: the security desk in Australia Square Tower; the building manager's office; a computer server on level 19 of the Tower; and in the computer system of the mechanical contractors for the building.
The primary judge found that there was an irregularity evident in the operation of this system from a record described as an "Object Change of State Report" for 25 February 2005, eight days before the accident. That record should have alerted JLL to a problem with the alarm system and caused JLL to have established a "further regime of inspection after 25th February and before the next grease trap service". That regime should have involved at least hourly inspections of the grease trap on a Saturday night: [118]. His Honour held that the failure to take that additional precaution was a breach of duty on the part of JLL and that those inspections also would have detected the presence of the spill before Mr Taouk sustained his injury: [118].
The issues in the appeal
JLL brought proceedings in this Court by way of summons seeking leave to appeal. It did not require leave to appeal because it appealed from a judgment in favour of Mr Taouk for $219,327: s 127(1) and (2)(c) of the District Court Act 1973. At the commencement of oral argument, it sought an extension of the time for filing its amended notice of appeal on the basis that it did not require leave to appeal. No party opposed that extension, which should be granted.
The following issues arise in JLL's appeal:
(1) whether the primary judge erred in granting Mr Taouk leave to amend to claim against JLL (ground 1);
(2) whether the primary judge erred in rejecting the tender of the documents identified as MFI 3, MFI 5, MFI 6, MFI 7, MFI 8 and MFI 9 (ground 2). If that evidence was improperly rejected, JLL does not seek a new trial and for that reason it would not be necessary to address whether a substantial wrong or miscarriage have been thereby occasioned: UCPR r 51.53. However, it would remain necessary to consider whether any evidence improperly rejected would have produced a different result as against JLL;
(3) whether the primary judge erred in finding that as at 25 February 2005 there was an irregularity in the operation of the grease trap alarm system which alerted JLL to a problem with that system and required that it institute hourly inspections on Saturday nights (grounds 3 and 4);
(4) whether the primary judge erred in finding that the implementation of such a system would have prevented Mr Taouk's accident. Specifically, whether his Honour erred in finding that the spillage began (in the sense that it was first able to be seen) not less than one hour before Mr and Mrs Taouk returned to their car (ground 5).
The following issues arise in Wilson's appeal:
(1) whether the primary judge erred in concluding that Wilson's duty of care in relation to the risk of injuries due to spillages on the car park surface required that it inspect the surface for such hazards at least every 30 minutes on a Saturday night after 5.00pm (grounds 1, 2, 3, 4 and 6);
(2) whether the primary judge erred in concluding that the carrying out of such inspections would have prevented Mr Taouk's accident (ground 5);
(3) whether the primary judge erred in apportioning liability between Wilson and JLL (ground 7).
In response to the first of the issues raised by Wilson's appeal, Mr Taouk was given leave during oral argument to file a notice of contention. By that notice he contends that the judgment against Wilson should be affirmed on the basis that Wilson was negligent in not having, on the night in question, a system which provided for inspections at 60 minute intervals, and that had there been such a system, Mr Taouk would not have been injured.
Disposition of JLL's appeal
Leave to amend to join JLL
Section 64(1) of the Civil Procedure Act 2005 gives the District Court power to grant leave to a party to amend any document in the proceedings. That power includes the power to grant leave to make an amendment that has the effect of adding a party to the proceedings; even if, which was not the case here, the claim is statute barred and not covered by the specific power to amend given by s 65 of the Act: Greater Lithgow City Council v Wolfenden [2007] NSWCA 180; East West Airlines Ltd v Turner [2010] NSWCA 53; 78 NSWLR 1. Such an application ordinarily should be made by a notice of motion: UCPR r 18.1; and that motion should be served on each "person affected by the proposed order": UCPR r 18.2(1). See, for example, the notice of motion in Fernance v Nominal Defendant (1989) 17 NSWLR 710. However, the Court has power to dispense with the requirement that a notice of motion be filed and served: UCPR r 18.2(2)(c).
The order made by the primary judge on 7 December 2009 was made in exercise of the power under s 64, in circumstances where his Honour must be taken also to have dispensed with the requirement that any notice of motion be filed and served on JLL. Each of those orders was interlocutory and with respect to a matter of practice and procedure.
JLL challenges these orders on the basis that its right to appeal from the final judgment entitles it to do so notwithstanding that they were interlocutory: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [5]-[8]. It says that the primary judge erred in proceeding without its having been given notice of the application and in making the order in circumstances where his Honour had earlier dismissed Wilson's application to file a cross-claim against JLL.
The relevant decisions of the primary judge were to dispense with the requirement that a notice of motion be filed and served and to grant leave to amend. Each involved the exercise of a discretion and accordingly can only be set aside on appeal if it involved error in the decision-making process of the kind described in House v The King [1936] HCA 40; 55 CLR 499 at 505: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [21].
In relation to the first decision, in the absence of any reasons of the primary judge it is not possible to identify what matters were or were not taken into account by his Honour. In such a case an appellate court may infer error in properly exercising the discretion if on the facts the decision "is unreasonable or plainly unjust": House v The King at 505. However, JLL does not make any such submission. Nor could it in circumstances where it does not identify any consideration which it would or could have raised in opposition to the application for leave had it been given the opportunity to do so. There being no relevant error demonstrated, this first decision must be upheld.
In relation to the decision to grant leave to amend, JLL says that the decision was "unreasonable" when considered against the earlier decision to refuse Wilson leave to cross-claim against it. However, the circumstances as they presented in December 2009 were different from those existing when Wilson's application was heard in October 2009. Greasetrap and Reliance were no longer parties and the only remaining party, Wilson, did not oppose the joinder of JLL. Indeed, it supported it and the amendment sought avoided any need for separate proceedings to be brought by Mr Taouk against JLL and by Wilson against JLL. Subsection 64(2) requires, subject to the dictates of justice, that all necessary amendments be made for the purpose of avoiding multiplicity of proceedings. In December 2009 that purpose could be achieved without any prejudice to the remaining parties to the proceedings (who either sought or consented to the order); and without any apparent prejudice to JLL (which accepts that it suffered no prejudice as a result of being joined). This being the position, the decision was not "unreasonable" and there is no basis for concluding that there was any failure properly to exercise the discretion to allow the joinder of JLL.
It follows that this ground of appeal should be rejected.
The rejection of the tender of various documents
JLL submits that the primary judge erred in rejecting the tender of a number of documents. With the exception of MFI 3 (a Systems Alarm Report), none of the documents was the subject of any evidence saying what the document was or, where applicable, what it recorded. It is convenient first to deal with those other documents (MFI 5 to 9).
On 21 July 2010 JLL produced a number of documents to the Court purportedly in answer to a subpoena which had been served on JLL in July 2009. The terms of that subpoena were not identified or relied upon before the primary judge as providing a basis for any inference relevant to the authenticity or identity of the documents produced other than that they had been produced from the custody of JLL. The documents included two agreements: between JLL and Group 4 Securitas Pty Ltd dated 1 August 2004 (MFI 5) and between JLL and Reliance Integrated Solutions Pty Ltd dated 1 August 2005 (MFI 6).
Of the remaining documents, MFI 7 (of three pages) and MFI 8 (of one page) contained the following words at the top of each page:
"AUSTRALIA SQUARE
LEND LEASE PROPERTY MANAGEMENT PTY LTD
PROGRAMMED PREVENTIVE MAINTENANCE SYSTEM"
One page of MFI 7 was headed "Monthly Service Sheet". The other two were headed "Monthly Alarm Test Sheet". MFI 8 was headed "2 Monthly Service Sheet". MFI 9 consisted of three documents titled Reliance Integrated Solutions Pty Ltd "Monthly Report to Jones Lang LaSalle for Australia Square" for January, February and March 2005.
After those documents were produced to the other parties and before they were tendered, JLL called two witnesses in its case. They were Mr Jose, who in March 2005 was a consultant to Chubb Electronic Security which maintained the building management control system within Australia Square; and Mr Mulcahy, who in March 2005 was employed by JLL as property services supervisor at Australia Square Tower. Mr Mulcahy gave evidence in general terms that in March 2005 an "integrated services provider" was responsible for co-ordinating the maintenance of the grease traps, including that on level two of the car park. He identified that provider as Reliance Integrated Solutions Pty Ltd and said that it "would have" signed off on plant preventive maintenance records and provided those records to JLL. Neither witness gave any evidence concerning the arrangements or systems in place in relation to the testing or service of the grease traps or alarms in the building. Nor was either witness shown any of the documents which had been produced. Specifically, Mr Mulcahy was not shown MFI 7 or MFI 8 or asked to explain, if he was qualified and able to do so, the circumstances in which those documents were completed, by whom and what they purported to record.
At this point a further matter ought be noted. It is for the party tendering evidence or asking a question to make clear to the trial judge the purpose for which the evidence is tendered and how it becomes relevant and admissible: Potts v Miller [1940] HCA 43; 64 CLR 282 at 292 per Starke J; Dainford Ltd v Yulora Pty Ltd [1984] 1 NSWLR 546 at 553 per Mahoney JA (Moffitt P and Hutley JA agreeing); Bennett & Co v Connors [1953] St R Qd 14 at 24 per Philp J; R v Bryant (No 2) [1956] St R Qd 570 at 575, 585; McLean v Kalanda Constructions Pty Ltd (Supreme Court of Queensland, Court of Appeal, unreported, 20 June 1995) per Davies, McPherson and Pincus JJA at 4-5. As Campbell JA observed in Adamson v Ede [2009] NSWCA 379 at [94] (Giles and Hodgson JJA agreeing), after referring to the passage in Potts v Miller cited above, decisions about admissibility are necessarily made in the course of running a trial and on the basis of such evidence and submissions as the judge has at the time of making the decision.
The first document tendered by JLL was MFI 5 which was described as "an agreement by which [JLL] engaged Group 4 Securitas to provide various services, including the monitoring of the alarms generated by the BMCS system". There was no further explanation as to how the fact of that agreement was relevant to the question whether JLL as property manager had breached its duty of care in relation to the maintenance of the grease traps. JLL's defence to Mr Taouk's pleading denied the allegation of breach of duty as property manager but made no positive allegation that it had discharged any obligation as property manager to exercise reasonable skill and care by putting in place systems for the monitoring and maintenance of the grease trap and retaining appropriately qualified third parties to implement those systems: see, for example, Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53] per Hodgson JA (Gyles AJA and Nicholas J agreeing).
The tender was objected to on the basis that there was no evidence proving its authenticity and that its relevance was not explained. The primary judge rejected the tender without giving reasons. JLL did not thereafter press the primary judge to give any reasons for the rejection of the tender of this or any of the other documents which are the subject of this ground of appeal.
It is not necessary nor practicable that every ruling about the admissibility of evidence be accompanied by reasons. Nor is it possible to formulate a single criterion by reference to which it can be judged whether reasons should be given. Cases which involve the exercise of a discretion or where admissibility depends on the resolution of some intermediate question of fact or law, may warrant the giving of short reasons. Whether that is so will also depend on the perceived importance of the evidence involved and the likely effect of its rejection or admission on the outcome of the case: see Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 260, 279; Kwan v Kang [2003] NSWCA 336 at [113]-[114]; Evans v The Queen [2007] HCA 59; 235 CLR 521 at [34]. However, if a party wants to preserve fully its rights to challenge a particular ruling on appeal and the basis for rejection or admission is not clear from the argument, it should press for that basis to be stated, however shortly.
It is not submitted that the primary judge committed an error of law in not giving reasons for his decision to reject the tender of MFI 5. Nor is it shown that his Honour erred in rejecting that tender. The first question which was required to be addressed was whether the document was relevant because it could rationally affect the assessment of the probability of the existence of a fact in issue: ss 55, 56 of the Evidence Act; Smith v The Queen [2001] HCA 50; 206 CLR 650 at [6]-[7]. MFI 5 was tendered as an agreement, although no specific evidence was led to establish its authenticity as such. It can be assumed, for the purposes of this analysis, that the question as to its relevance fell to be determined on the basis that the document was what it purported to be: cf National Australia Bank v Rusu [1999] NSWSC 539; 47 NSWLR 309 which concerned the admissibility of two pages which, although tendered as business records containing representations as to payments made into an account of the second defendant with the Advance Bank, did not on their face identify the bank or customer and were not otherwise proved by admissible evidence to be records of transactions between those parties. It is not necessary in this case to consider the correctness of the observations in that case as to the operation of s 58 of the Evidence Act and the extent to which documents may authenticate themselves: see also Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; 21 NSWCCR 389 at [46]; Australian Securities and Investment Commission v Rich [2005] NSWSC 417; 216 ALR 320; Barescape Pty Ltd v Bacchus Holdings Pty Ltd (No 5) [2011] NSWSC 1307; cf Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305.
The fact of an agreement between JLL and Group 4 Securitas for the provision of services which included the monitoring of alarms may have been relevant to a defence that JLL exercised reasonable skill and care in engaging others to take steps to keep the car park and grease trap areas, reasonably safe. As Hodgson JA observed in Bevillesta Pty Ltd v Liberty International Insurance Co at [53] discharge of the duty of an occupier in this way "requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps".
In the absence of any pleaded defence alleging that JLL had exercised reasonable skill and care in this way it was at least incumbent on JLL, if it tendered the document as relevant to such a defence, to explain the argument sufficiently to identify the primary or intermediate facts relied upon which may be in issue. The broad statement as to the agreement being one by which Group 4 Securitas provided services including the monitoring of alarms did not do this. In the absence of any further explanation either in the evidence or from counsel, the primary judge is not shown to have erred in not being satisfied as to its relevance. It remained open to counsel to provide a more detailed explanation as to the relevance of the document in the context of other documents proposed to be tendered or to press the tender at a later stage and in the context of further evidence. These opportunities were not taken up.
Ordinarily, such an explanation cannot be given for the first time in argument on appeal because there will not have been any "improper" admission or rejection of evidence and because of the prejudice to the other parties in a party being permitted to justify the tender on grounds not argued or sufficiently argued before the primary judge. That prejudice will arise in relation to rejected material if those parties could possibly have addressed it by further evidence, including through cross-examination: see Rex v Grant (1834) 5 B & Ad 1081 at 1082 110 ER 1092 at 1093; Doe d Kinglake v Beviss (1849) 7 CB 456 at 507, 508, 513; 137 ER 181 at 202, 203, 204; Dun v Macintosh [1906] HCA 24; 3 CLR 1134 at 1152, 1169; National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; 10 CLR 1 at 12; Dainford Ltd v Yulora Pty Ltd at 553; and McLean v Kalanda Constructions Pty Ltd at 4, citing Bennett & Co v Connors at 24-25. This reflects the fundamental principle that a party is bound by the conduct of his or her case and that it is only in exceptional circumstances that after a case has been decided against him or her, a party is allowed to raise a new argument which, whether deliberately or by inadvertence, was not put during the hearing when the opportunity was available: see Metwally (No 2) v University of Wollongong [1985] HCA 28; 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8; Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at [44]. There is contrary authority which suggests that where evidence is tendered on an untenable basis and rejected, an appeal may be brought if the evidence was admissible on an alternative basis (although not argued): see Engebretson v Bartlett [2007] VSC 163; 16 VR 417 which declines to follow the decision of Madden CJ in Honeybone v Glass [1908] VLR 466 which applied the two leading English decisions cited above. The principle enunciated in those early decisions was well entrenched by the time it was applied in Dun v Macintosh, which is not referred to in Engebretson. See, for example, Lush's Practice of the Superior Courts of Law, 3rd ed (1865) Vol 2 at 630; Chitty's Archbold's Practice of the Queen's Bench Division of the High Court of Justice, 14th ed (1885) Vol 1 at 732; Taylor, Law of Evidence, 11th ed (1920) Vol 2 at 1248-1249; Roscoe's Evidence in Civil Actions, 20th ed (1934) Vol 1 at 235; Wigmore on Evidence, 3rd ed (1940) Vol 1 at 320; Phipson on the Law of Evidence, 9th ed (1952) at 711.
For the same reasons it is not established that the primary judge erred in not being satisfied as to the relevance of MFI 6. That document purports to be an agreement dated 1 August 2005 for the provision of services by Reliance Integrated Solutions Pty Ltd for a period commencing after the date of the relevant accident. The agreement was described as "one of the documents by which [JLL] delegate[s] responsibility for maintenance of the building, including the grease trap". Again there was no further elaboration which would permit a judgment as to whether the fact of the agreement or its terms could rationally affect the probability of the existence of a primary or intermediate fact in issue. The primary judge rejected the tender "at this stage". No subsequent attempt was made to re-tender the document in the light of other evidence or of a further explanation which supported its relevance.
JLL then tendered the three pages being "MFI 7". No attempt was made to prove the authenticity of the document by other evidence. The pages do not on their face identify the person who prepared them or the business in the course of or for the purposes of which, they were prepared. In support of the tender it was said that "an explanation can be given of this document and it may carry little weight but it will carry some weight to establish that the week before the ... accident the alarm for grease trap number 1 was tested". No submission was addressed to the application of the exception to the hearsay rule in s 69(2) of the Evidence Act. Nor was any attempt made to explain how the document contained or made any representation as to the testing of the alarm. Before this Court reference was made to the first page headed "Monthly Alarm Test Sheet" and an entry for "Grease Trap 1" which contained ticks in columns headed "Received" and "Reset" as making a relevant representation.
The tender was objected to by counsel for Mr Taouk and for Wilson. It was said that it was not established that the document was a business record, and that in the absence of other evidence it was uncertain what could be made of it; that the authenticity of the document had not been established; that its author had not been identified or called to give evidence; that the ticks and writing on the document had not been explained; and that in the absence of explanation the documents were not relevant or carried such little weight as to be of no assistance whatsoever. The primary judge rejected the tender. He did not give reasons for doing so. Nor was he asked to do so.
The submissions objecting to the tender identified at least two possible grounds of objection. The first was that the relevance of the document had not been established. Assuming the authenticity of the document (that is that it was a record of an inspection or test of the relevant grease trap alarm by someone), the facts in issue to which the document was said to be relevant were whether the alarm for the grease trap on level two was faulty on 25 February 2005 (being the time it was suspected of being faulty) and whether after 25 February 2005 and before 5 March 2005 that alarm had been tested and found to be operating normally. The second possible ground of objection was that the probative value of the document was substantially outweighed by the danger that it might be "unfairly prejudicial" or "misleading or confusing" so as to be excluded in exercise of the discretion under s 135 of the Evidence Act.
At the time of the tender, it was not said whether MFI 7 was a business record of JLL or of some other entity. On the basis that it was produced from the custody of JLL and was a document of the kind which Mr Mulcahy said was "signed off" by Reliance Integrated Solutions, provided to JLL and kept by it, it answered the description of a business record of JLL. Its relevance then depended upon it containing a "previous representation" which was made or recorded for the purposes of JLL's business and by which the maker of that representation asserted a fact which was in issue or which made more probable the existence of a fact in issue: s 69(1) of the Evidence Act. For the business records exception to the hearsay rule to apply, it also had to be established that s 69(2) applied and was satisfied in relation to that asserted fact. Neither of these matters was addressed in the submissions to the primary judge.
The only fact which JLL identified to the primary judge as possibly asserted by MFI 7 was that on 28 February 2005 "the alarm for grease trap number 1 was tested". No explanation was given to his Honour as to how a statement in those terms was made by the entries on one or more of the three pages. Nor was there any evidence explaining those entries. In the absence of any such explanation there remained a number of uncertainties. The page headed "Monthly Alarm Test Sheet" (page 1) refers to 26 items of equipment including grease trap 1. In relation to that and a number of the other items, there are ticks in the columns headed "Received" and "Reset". However, it is not known what those ticks signify and as to what checks or tests, if any, were undertaken.
The page of MFI 7 headed "Monthly Service Sheet" appears to record a check list of work or other servicing to be undertaken in relation to various alarms. It could be interpreted as describing checks to be undertaken to what is referred to as the "supervisory alarm panels - level 5" or, possibly, to specific checks to be done on each of the 26 items of equipment referred to on the first page headed "Monthly Alarm Test Sheet" or on the further 16 items of equipment referred to on the other page with that heading. That check list includes the following descriptions:
● Use 'Alarm Test Sheet' in conjunction with service.
● Inform Security there will be an alarm test.
● Obtain a radio from Security.
● Generally check each line at source of alarm.
● Ensure that each alarm is received at Nexus Terminal and confirm each test with Security via radio.
● Check all float switch components for deterioration, lubricate.
● Record the time each alarm is received (use 'Alarm Test Sheet').
The page recording that check list also contains three columns under the heading "Equipment Numbers" and to the right of each of these descriptions. There are ticks in each of those three columns for each of the descriptions set out above. However, those columns do not indicate to which, if any, of the 26 items or the further 16 items, they relate. For that reason, it is uncertain whether any, and if so which, of those items was the subject of any of those checks.
In the face of those uncertainties, in the absence of any explanation as to how the asserted fact was said to arise, in the absence of any reference to or explanation as to how s 69(2) was satisfied in relation to that asserted fact, and in the absence of any indication that there would be further evidence called or tendered which would establish the authenticity of the document, the primary judge did not err in not being satisfied as to its relevance. In particular, his Honour could not be satisfied that it could reasonably be supposed that the unidentified person or persons who completed the document intended to assert by doing so that any particular test was carried out on the alarm for grease trap number 1 on 28 February 2005: s 59(1), (2A) of the Evidence Act. For that reason, there was no "asserted fact" which could rationally affect the assessment of the probability of the existence of any fact in issue: s 55(1).
MFI 8 is headed "2 Monthly Service Sheet" and bears a date "Jan 05". When tendering this document JLL did not identify any prior representation said to be made by the document or the fact in issue to which it was said to be relevant. As the document is dated January 2005 its relevance to the condition of the grease trap alarm in late February 2005 is not established in the absence of some other evidence which does so. For that reason his Honour was entitled to reject the tender of this document on the ground that it was not relevant to any fact in issue.
JLL also tendered the three monthly reports which became MFI 9. These consist of 211 pages. The particular pages relied upon and the representations which they were said to contain were not identified. Nor were the issues to which the document was said to be relevant formulated. The primary judge was entitled to reject this tender on the basis that he was not satisfied as to the relevance of the three documents.
Finally, JLL challenges the rejection of the tender of MFI 3 which was a 700 page Systems Alarm Report covering the period from 4 to 6 March 2005. The document was tendered to prove that there was no record of the grease trap alarm going off on the evening of 5 March 2005. Mr Jose gave evidence that he printed this report. He gave no evidence as to what the document recorded or as to how it should be interpreted. On its face it does not contain a statement that the alarm did not go off on 5 March 2005. No submission was made explaining how that fact was established by the document alone. In the circumstances, the primary judge did not err in rejecting the document on the basis that its relevance was not established. One further matter must be said about JLL's position in relation to this document. It could not possibly have suffered any prejudice by its rejection. Nor could that rejection possibly lead to a different outcome to the claim against JLL because Mr Jose was eventually permitted to give oral evidence that the relevant alarm did not register on the evening of 5 March 2005 and the primary judge found that it apparently "failed" on that day: [119].
The finding as to an irregularity with the grease trap alarm system
The primary judge found that at a time before the accident on 5 March 2005, the alarm system for the grease trap on level two was "unreliable" and subject to some "irregularity". In the face of evidence that the alarm had failed to register on the evening of 5 March, his Honour inferred that the earlier "irregularity" continued to be present at that time. His Honour also found that this "irregularity" was or should have been known to JLL which should have responded, before the alarm was checked and rectified, by establishing a system of regular inspections which required inspections at least once every hour on a Saturday night: [110], [113], [118].
The "irregularity" referred to was the manner in which the alarm had been triggered on 25 February 2005. The document which the primary judge found showed that "irregularity" described itself as an Object Change of State Report for that day. As explained by Mr Jose, that report records that the status of the alarm for the grease trap on level two registered on and off eight times between 15:09:49 and 15:09:54 (a period of six seconds).
The primary judge understood this evidence to say that the alarm had triggered or gone off eight times in six seconds and not merely that there had been some change of status of the switch in the alarm mechanism. If the alarm had been triggered eight times in six seconds, that would have been an "irregularity" because the alarm was only supposed to be triggered after the switch had been closed for a period of more than ten seconds. JLL argued that the primary judge's interpretation of the report and Mr Jose's evidence was wrong and that the report only recorded a change of status of the switch.
Mr Jose's evidence relevantly included the following:
"Q. Now what does the BMS system do with that information if anything?
A. The BMS, if the input is there for there X amount of time it then will send an alarm back to the multiple computers hooked up to the system, so.
Q. Now when you say "if it's there for X amount of time" what do you mean by that?
A. Ten seconds is the maximum time. We have a delay time of 10 seconds because as the water flushes into the float it might change its state between, you know, within one second. So if it's there for more than 10 seconds it then will send an alarm out.
Q. And where does that alarm go to?
A. It goes back to the security desk to the building manager's office, to the server on level 19 and to the mechanical contractors PC as well."
(Black 234)
...
"Q. Is that system able to generate reports that can tell someone what's happening in relation to any particular alarm within the building?
A. Yes it is, yeah.
Q. You have in front of you a document which is entitled "Object Change of Status Report"?
A. Yeah.
Q. Does change of status simply mean on or off?
A. That's right, yeah."
(Black 234)
"Q. The first page of the document that you have is dated 25 February 2005, is that right?
A. Yes.
Q. Is that one of the reports that can be generated from the BMCS system to indicate what has happened with any particular alarm at any particular time?
A. Yeah."
(Black 235)
...
"Q. Have you for the purposes of giving evidence today, been asked to interrogate the building management control system to ascertain whether or not that alarm in grease trap number 1 was activated on 5 March 2005?
A. Yes."
(Black 235)
"Q. What did you do is what you're asked?
A. I ran two system reports. One is a systems alarm report and one is a change of state alarm report, or change of state report. The systems alarm report did not have any--"
(Black 236)
...
"Q. Was one of the inquiries that you were asked to make for the purpose of these proceedings, to extract data from the building management control system to ascertain whether the level 2 grease trap number 1 high level alarm was activated in the months of January to June 2005?
A. Yes.
Q. And did you generate any reports in relation to that inquiry?
A. Yes, there were--
Q. Can I show you these documents--"
(Black 238)
...
"Q. The first of those is dated 28 January 2005?
A. Yes.
...
"Q. You understood the task that you had been asked to undertake, to try and find records of the activation of that alarm for the whole of January, didn't you?
A. I asked that - go from January to June.
...
Q. And why isn't there a report for 1 January?
A. The report only is generated through an activation for that particular month because I attached the file for that month. So the January report says that on 28 January 2005 it went off and on twice at 13.51.
Q. The next document in that bundle is a report for 25 February 2005?
A. That's right, yeah. On 25 February it's gone off and on multiple times."
(Black 239) (emphasis added)
The report for 25 February 2005 was the Object Change of State Report for that day.
Whilst the question and answer (at Black 234) referring to a "change of state" occurring within one second is consistent with the document only recording changes of state as distinct from the activation of alarms, Mr Jose's explanation (especially by the questions and answers at Black 239) indicates that the document records that the alarm had been activated or "gone off and on" multiple times on 25 February 2005. Having regard to Mr Jose's evidence that the alarm should only be "sent" out or activated if there has been a change of state which lasts more than ten seconds (Black 234), the primary judge was justified in concluding on this evidence that there was an irregularity in the operation of the alarm system.
JLL accepted in argument that if it was on notice of that problem, its duty of care required that it check the alarm system and fix it if it was faulty and take some other step in the interim to protect against harm from an overflow. The primary judge found that JLL was or should have been on notice of the irregularity because of the report generated about the multiple alarms which was communicated to the building management control system: [113]. That finding was available on Mr Jose's evidence that this system stored and made readily available information as to the activation of alarms.
There was no suggestion in the evidence that JLL had communicated to Wilson the fact of a problem with the alarm, made arrangements for joint inspections on a regular basis or satisfied itself that Wilson was making such inspections. Nor did the evidence show that JLL had satisfied itself that the grease trap was empty or that the level of grease was such that there was no risk that it could overflow. Although the tender of MFI 7 (the three service or test sheets) was rejected, those documents could not have established that any particular test was carried out on the alarm on 28 February 2005 or that if any such test was carried out it was intended or designed to address the "irregularity" found by the primary judge. In these circumstances, the primary judge found that JLL should have implemented an interim regime of inspection which could have involved JLL and Wilson employees: [118].
JLL accepted that one thing it could have done was to rely upon inspections being conducted by Wilson. It also submitted that it would have been entitled to rely on whatever inspections Wilson "should have been doing". In my view, for the reasons which appear below, Wilson should have been undertaking visual inspections of the car park surface at least once every hour. If Wilson was not to JLL's knowledge undertaking such inspections, JLL was in breach of its duty of care in the absence of having satisfied itself that there was no risk that the grease trap could overflow, in not inspecting it on an hourly basis. The primary judge did not err in holding that JLL had breached its duty of care: [118].
Finding as to when the spillage began
Assuming that there should have been hourly inspections of the car park surface, JLL submitted that the evidence did not support a finding on the balance of probabilities that the spill would have been discovered by such an inspection and the accident avoided.
The primary judge's finding that the spillage began, in the sense that it was first able to be seen, more than an hour before Mr and Mrs Taouk returned to their vehicle, was justified by reference to the "static" appearance of the spill, the area it covered and its appearance as shown in photos: [91].
JLL challenges that finding on the basis that the evidence did not permit a finding as to how long it took for the grease and oil to spread from under the door to cover an area two metres wide and extending about three to five metres from the door. It is said that to make such a finding it was necessary at least to have evidence as to the viscosity of the fluid and the rate of discharge of the fluid from the grease trap onto the car park surface. In the absence of such evidence it was not possible to estimate, by reference to the area covered by the discharge and the volume of it, how long it had taken to spread in the way it had.
In my view that submission is correct and should be accepted. The fact that the spill was static in the sense that it was not flowing at the time of Mr Taouk's fall, did not make it more or less likely that it had been visible on the surface for more than one hour. The photographs in evidence gave some idea of the size and colour of the spill. However, they do not enable any assessment of the viscosity of the fluid. None of this evidence enabled an assessment of how long it might have taken for the spill to cover the area of six to ten square metres which the evidence suggested it covered at the time of Mr Taouk's fall.
Nevertheless, two conclusions may be drawn from the evidence taking into account the unchallenged finding that the spillage started at some time after 8.00pm. First, if it took more than one hour from the time the fluid emerged from under the door for it to cover the area described in evidence, some fluid at least would have been visible to someone undertaking an inspection which included the area adjacent to the door. Secondly, if it took one hour or less for that process to occur, the spillage could have started at any time after 8.00pm and before the time which was one hour or less before Mr Taouk returned. Depending on when he returned between 11.00pm and 11.30pm, on this scenario the spillage could have started at any time in a period of approximately two hours to two and three quarter hours between 8.00pm and 10.45pm. If it started in the first two of those hours, between 8.00pm and 10.00pm, it would have been visible to someone undertaking an inspection during that period.
There is no basis in the evidence for concluding that the overflow was likely to have commenced at some particular time in the period from 8.00pm to 10.45pm rather than at any other time in that period. There was no evidence that oil or grease was more likely to be discharged into the grease trap (so as to cause it to overflow) at any particular time during that period. Nor was there any evidence which made it more likely that the discharge onto the car park surface had commenced earlier in the evening rather than later. Although the evidence was that two cars were parked behind Mr Taouk's car when he arrived in the car park and that they were not there when he returned, it was not suggested that if the spillage had commenced by the time the drivers of those vehicles left the car park, it would have been observed and was likely to have been reported. Nor did the evidence indicate when those cars left the car park. There was reference in the evidence to there being a "very strong smell" inside the grease trap room. It was not argued, however, by reference to any evidence that the spillage gave off a smell which made it likely that if it had been there for some time, its presence would have been noticed and reported by some other user of the car park.
That being the position, the probability is that the spillage commenced between 8.00pm and 10.00pm rather than after 10.00pm and before about 10.45pm: Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 at [34]; Kocis v SE Dickens Pty Ltd [1998] 3 VR 408; Rose v Abbey Orchard Property Investments Pty Limited (1987) Aust Torts Reports 80-121 at 68,928. It follows that the primary judge's conclusion that a system which required inspections at least once every hour would have prevented Mr Taouk's accident was justified on the evidence.
Conclusion in relation to JLL's appeal
Because each of the issues raised by JLL's appeal has been decided against it, its appeal should be dismissed.
Disposition of Wilson's appeal
Did Wilson's duty of care require inspections every 30 minutes?
Wilson makes a number of submissions which I will address in turn.
First, it is said that the primary judge formulated the obligation of Wilson in the circumstances of this case as being to detect and remove any hazard to users of the car park. I do not agree. His Honour correctly formulated Wilson's duty as occupier of the car park to the class of persons of which Mr Taouk was a member, namely users of the car park, as being to take reasonable care to avoid foreseeable risks of injury to them: [13]; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488; Rose v Abbey Orchard Property Investments at 68,927; Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47. Having done so, his Honour addressed the three preconditions which s 5B(1) of the Civil Liability Act says must be satisfied before a liability arises for failing to take precautions against a foreseeable risk of harm: [67]-[75]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263; 77 NSWLR 360 at [173].
Secondly, it is said that the primary judge erred when identifying the risk of harm and finding that it was foreseeable: cf s 5B(1)(a). His Honour identified the relevant risk of harm as being that a patron of the car park could slip and fall on oil, grease, or rubbish deposited on the car park surface. He also found that risk was foreseeable: [67]. Wilson argues that this risk should have been defined more narrowly and as the risk of slipping and falling on oil or grease which had escaped from "a service utility within the car park".
The duty of care of an occupier such as Wilson was to take reasonable care for the safety of users of the car park so that they were not exposed to any unreasonable risk of physical injury, including from slipping on the car park surface: Zaluzna at 488; Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [27]. That duty was not concerned with unreasonable risks of slipping on some substances only or on substances from some sources and not others. It was directed to the risk of slipping by reason of the presence of any substances on the car park surface, a risk that Wilson's witnesses acknowledged.
The risk of harm identified by the primary judge was an obvious one and accordingly foreseeable. Mr Herberstein, the Development Manager of Wilson responsible for managing its car parks, agreed "absolutely" that it was important for safety that the surface of the car park be kept clear of oil and grease and that spills on the surface of the car park presented a hazard for pedestrians such that it was important to identify them as quickly as possible and do something about them. Mr Garofano, who worked as a night supervisor in the car park in March 2005, agreed that on occasions cars left oil on the surface of the car park which had to be cleaned up and that at other times water leaks "or things like that" on the surface of the car park had to be reported and cleaned up. The primary judge did not err in identifying the risk of harm or finding that it was foreseeable.
Thirdly, it is argued that the primary judge erred in finding that the risk of harm was not insignificant. His Honour found that the "general risk of spillage" was not insignificant when "two hazards" are considered: [68]. Those hazards were that oil, grease or rubbish could be deposited on the surface by users of the car park or their cars or that oil or grease might overflow from the grease trap onto that surface. Wilson submits that his Honour erred in taking account of the risk of harm due to any spillage rather than considering only the risk of harm due to an overflow from the grease trap or some other service utility. For the reasons given above, this argument does not address the relevant risk of harm. Addressing that risk, the evidence of Mr Herberstein and Mr Garofano, the fact that Wilson had a cleanup kit available for spillages, and the fact that the car park attendant was expected to make physical inspections of the car park at regular intervals for purposes which included identifying spillages or other hazards, demonstrate the correctness of the finding that the risk was not insignificant.
Finally, it is submitted that the primary judge erred in finding (at [75]) that a reasonable person in Wilson's position would have required inspections of the car park surface every 30 minutes on a Saturday night between 5.00pm and 12.30am. Specifically it is said that there was no evidence to support a conclusion that it would be reasonable to have inspections every 30 minutes; that his Honour failed to consider the matters in s 5B(2); and that his Honour was wrong to treat Mr Herberstein's evidence as being that it was not unreasonable to require the car park attendant to walk around the car park area once every hour on a Saturday night.
In response to this argument, Mr Taouk contends that his Honour should have held that a reasonable person in Wilson's position would have undertaken an inspection at least once every hour. It submitted this was in accordance with Mr Herberstein's evidence.
It is correct that there was no evidence which supported the primary judge's conclusion that the taking of reasonable precautions required an inspection every 30 minutes. The only evidence as to what might have been reasonable was the evidence of Mr Herberstein. In his discussion as to what measures might have been taken, the primary judge referred to the decision in Rose v Abbey Orchard Property Investments as providing some assistance on the "appropriate measures for a car park operator to take" for the detection of hazards. That involved error. The primary judge was not entitled to rely upon the findings or observations in that case as evidence or equivalent to evidence of good practice upon which he might make findings as to what was appropriate or reasonable in the circumstances of this case: Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503 per Windeyer J; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [3], [4] per Gleeson CJ.
It is also correct that the primary judge did not expressly consider, as he was required to do, any of the four matters referred to in s 5B(2). Those matters are the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm.
In view of these errors, the primary judge's conclusion as to the system of inspection which a reasonable person in Wilson's circumstances would have adopted cannot stand and it is necessary to address Mr Taouk's contention. In my view, the evidence justified a conclusion that a reasonable person in Wilson's position would have required that on Saturday nights there be at least hourly inspections of the car park surface.
On Saturday evenings there was only one attendant on duty on level two. That attendant's tasks included patrolling the car park at regular intervals, although no time periods were specified and no record was required to be kept. One reason for the inspections was to check for spillages or other hazards on the car park surface. The evidence suggested that those inspections would only take a few minutes and that the operator could use a stop sign or boom gate to prevent cars entering the level two car park whilst he or she was conducting the inspection.
Mr Herberstein agreed that very occasionally oil or grease or other material was deposited on the car park surface and that this represented a safety risk to pedestrians which made it important to identify and deal with the hazard as quickly as possible. None of the factors in s 5B(2) suggest that a reasonable person in Wilson's circumstances would not have undertaken hourly inspections. Whilst the likelihood of a spillage may not have been regarded as high, it nevertheless presented a risk which Wilson recognised as requiring attention at least by the carrying out of patrols involving physical inspections at regular intervals. If there was a spill and it was not detected and cleaned up, the injury to a user of the car park could be very serious. The burden of requiring at least hourly inspections was not great in view of the fact that the operator was already required to undertake inspections, those inspections did not interfere with the efficient operation of the car park and Wilson would not be required to commit any further resources to enable that to occur. Finally, there is no social utility involved in exposing users of car parks to the risk of slipping and sustaining injury.
It is next necessary to consider the evidence of Mr Herberstein. He agreed that it was "not unreasonable given the number of cars in the car park on a Saturday night in March 2005 to have the car park attendant walk around level two once every hour". He was then asked whether he accepted that such a requirement "would be a useful and valuable addition to [the] shift clearance report". He responded in the negative. Wilson submits that his agreement to the first proposition was only an agreement to what Wilson "could have done" and that his refusal to agree to the second proposition was to be understood as indicating that he did not accept that it was necessary to impose such a system of inspection or that it was reasonable to do so.
I do not agree that those questions and answers are to be interpreted in that way or that the primary judge was wrong to regard Mr Herberstein as agreeing that it was not unreasonable in the interests of safety to require inspections at least once an hour. The first proposition in its reference to "not unreasonable given the number of cars in the car park" was to be understood as suggesting that a justifiable and sound response to the safety issues involved with the number of cars using the car park was that there should be an inspection at least every hour. That was clear from the previous question which had enquired what the position would be if the shift clearance report contained a notation for instance "that the car park attendant walk around the car park every hour, briefly walk around and check for any safety issues and note that he had done so". Mr Herberstein's negative response to the second proposition was not directed to whether it was "unreasonable" to require such inspections but to whether there should be a notation on the form of shift clearance report which was in evidence and which was used to record car movements and revenue for a shift rather than the undertaking of inspections or other routine procedures.
The evidence justified a conclusion that a reasonable person in Wilson's position would have required inspections of the car park surface at least once an hour on a Saturday evening. I uphold the argument raised by Mr Taouk's notice of contention.
Whether hourly inspections would have prevented Mr Taouk's accident
I have concluded in relation to JLL's appeal that hourly inspections of the grease trap would more probably than not have prevented Mr Taouk's accident. That conclusion applies equally to hourly inspections of the car park surface conducted by Wilson.
Apportionment of liability between Wilson and JLL
The primary judge dealt with this question shortly. His Honour apportioned liability 70 per cent to Wilson and 30 per cent to JLL on the basis that although JLL had primary responsibility for ensuring that grease did not escape from the grease trap undetected, if it did escape, the spillage should have been detected by Wilson had it taken reasonable precautions: [119].
Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 enables recovery between joint and several tortfeasors liable in respect of the same damage of such amount "as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage". An assessment of that responsibility requires a comparison, with respect to the acts or omissions of each tortfeasor, of the degree of departure from the standard of care and of the relative importance of those acts or omissions in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494.
That task of apportionment involves the weighing of a number of considerations and the making of judgments about which minds might reasonably differ. Accordingly, a conclusion in respect of apportionment is subject to appellate review in accordance with the established principles which apply to the exercise of a judicial discretion: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201; AV Jennings Pty Ltd v Maumill (1956) 30 ALJ 100 at 101; Podrebersek at 494; South Australia v Ellis [2008] WASCA 200 at [492]; Tarabay v Leite [2008] NSWCA 259 at [29].
Wilson argues that in the light of the finding that JLL had "primary" responsibility for seeing that the grease trap did not overflow, the primary judge erred in finding that Wilson should bear the major responsibility for the consequences of that escape; especially in circumstances where it had not been established that Wilson knew or ought to have known that grease may escape so as to require any more stringent system of inspection than was then being employed.
This argument seems to assume that the breach of duty of each of JLL and Wilson was in failing to take precautions against the same risk of harm. That was not the case. The risks of harm which the primary judge found that Wilson and JLL failed adequately to address were different. The foreseeable risk of harm which Wilson failed adequately to address was that of a user of the car park slipping or falling because of oil, grease or some other substance deposited on its surface whereas the risk of harm which JLL failed adequately to address was that resulting from the escape of grease or oil from the grease trap. That risk included that of a user of the car park slipping on that grease or oil.
Whilst JLL had to take reasonable precautions directed to preventing or being aware of escapes of liquid from the grease trap, Wilson had to take reasonable precautions directed to keeping the car park surface clean and free of any form of spillage, whether caused by patrons or their cars or from any other source such as a broken water pipe. Another potential source of spillage, at least as a realistic possibility, was the grease trap.
JLL had an alarm system in place to warn of any overflow of the grease trap. That alarm system was or should have been known to be faulty in some respect. JLL's failure was in not responding, or having a system in place which ensured a response to that knowledge, by repairing the alarm and taking steps in the meantime to see either that the grease trap did not overflow or, that if it did, that fact would be discovered and acted upon promptly.
Wilson had a system which provided for an inspection of the car park surface at the commencement and end of each Saturday evening shift. The person on duty was also required to conduct "regular inspections". The evidence did not suggest that any inspections happened during the shift on the night in question and there was no requirement that they be carried out every hour and that some record be kept of that fact.
The primary judge was correct to observe that Wilson was in a "better position" than JLL to deal with the risk of oil and grease on the car park surface. It had someone working on that level of the car park who, the evidence showed, was able without difficulty to walk around and undertake a physical inspection at hourly intervals. Although the grease escaped and its escape remained undetected because of JLL's negligence, the probability is that its presence would have been seen and Mr Taouk's injury avoided if Wilson had exercised reasonable care. The primary judge's apportionment of 70 per cent responsibility to JLL is not manifestly excessive or otherwise shown to have been arrived at by a process which took account of a wrong fact, applied the wrong test, took account of an irrelevant consideration or failed to take account of a relevant consideration. That apportionment reflects the fact that Wilson as occupier of the car park was primarily responsible for the safety of those who used it and was best placed to deal with dangers and risks of the kind which occurred: see Jones v Bartlett [2000] HCA 56; 205 CLR 166 at [195]. This ground of appeal must be rejected.
Conclusion
For these reasons the following orders should be made:
(1) Applicant's summons seeking leave to appeal dismissed.
(2) Extend the time for the appellant to file its amended notice of appeal to a date seven days after the date of this order.
(3) Direct the appellant to file and serve its amended notice of appeal within seven days of the date of this order.
(4) Appellant's amended notice of appeal dismissed.
(5) Second respondent's notice of appeal dismissed.
(6) Applicant/appellant to pay the first respondent's costs of the summons seeking leave to appeal and of its appeal.
(7) Second respondent to pay the first respondent's costs of its appeal.
SACKVILLE AJA: I agree with Meagher JA.
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Decision last updated: 25 October 2012
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