Jordan v Crawford/McKillop/LHS Holdings Pty Ltd

[1987] TASSC 90

Serial No B20/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Jordan v Crawford/McKillop/LHS Holdings Pty Ltd [1987] TASSC 90; B20/1987

PARTIES:  JORDAN
  v
  CRAWFORD/MCKILLOP/LHS HOLDINGS PTY LTD

FILE NO/S:  M105/1986
DELIVERED ON:  8 May 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B20/1987
Number of paragraphs:  23

Serial No B20/1987
List "B"
File No M105/1986

JORDAN v CRAWFORD/MCKILLOP/LHS HOLDINGS PTY LTD

REASONS FOR JUDGMENT  UNDERWOOD J

8 May 1987

1. This is an application pursuant to the Limitation Act 1974, s5(3), for an order extending the period limited by s5(1), within which an action for damages for negligence may be commenced.

1. On the 12 August 1981 the applicant, who was employed as a draftsman, visited premises owned by the respondent at 66 Cameron Street Launceston. The building comprised several suites of offices located on two floors. One of the offices on the second floor was occupied by a firm of mechanical engineers. The applicant went to this office in the course of his employment as a draftsman. On completion of his business, the applicant left the office in company with Mr Cookson, one of the employees of the firm of mechanical engineers. On reaching a landing half–way down the stairs the applicant slipped on some water lying on the vinyl covered floor and fell down the remainder of the stairs.

1. As a result of the pain and bruising he sustained in the fall the applicant consulted his general practitioner and was given a certificate for three days off work. On his return to work the applicant, at the request of his employers, completed and submitted a claim for workers compensation.

1. In 1970 the applicant suffered an injury to his spine in a motor vehicle accident. This injury remained painful until 1979 when he underwent a laminectomy operation. Thereafter, until the fall down the stairs, his back "was really good". The pain experienced after the fall persisted. Some nine months after the accident the applicant moved to Darwin where he lived until about November 1985 when he returned to Tasmania.

1. The pain in the applicant's back worsened. In about June 1983 (almost two years after the accident) he consulted a specialist in Adelaide who told him that he thought the top graft of the laminectomy had been broken in the fall resulting in damage to some nerves. During the following six months the applicant underwent physiotherapy. This did not relieve the symptoms and in December 1983 a spinal fusion was carried out. The applicant still suffers from symptoms which, for the purpose of this application, are not necessary to detail.

1. In March 1984, five months before the time within which proceedings could be commenced, the applicant consulted a solicitor in Darwin for advice about recovering damages for the injury. The solicitor made no reference to any limitation of time within which proceedings could be brought. According to the applicant's evidence, the solicitor told him, "it was too hard and unless we move back to Tasmania it wasn't worth doing". The applicant, whom I assess to be a truthful witness, was pressed in cross–examination about the advice he received in Darwin. I find that the applicant's understanding of the advice was that the successful prosecution of a claim would be difficult and that that difficulty was compounded by the fact that he was then living in Darwin. The applicant said that he had "had a bad experience with solicitors in connection with his motor vehicle claim" and as a result of the advice in Darwin and his prior experience with solicitors, he made a decision not to pursue the matter further. At the time he made that decision he was unaware of any limitation of time within which proceedings could be commenced, but there was nothing to suggest that his decision would have been any different had he then been aware of such limitation.

1. There matters remained until a year after he had returned to Tasmania to live. In November 1986 he again consulted a general practitioner. The doctor told him "depending on the statute or (sic) limitations you should have a claim. Go and see John Kable". The applicant accepted this advice and the present application was filed on the 21 November 1986. At that time, subject to any order of the court, the commencement of proceedings had been barred for two years and three months.

1. The onus is on the applicant to establish that in all the circumstances of the case it is just and reasonable to make the order sought. The principles upon which the court exercises its discretion in applications such as this one are welt known. See Sophron v Nominal Defendant (1957) 96 CLR 469; Klein v Domas (1963) 109 CLR 467.

1. On the question of delay it was said in Hall v The Nominal defendant (1966) 117 CLR 423, at p435:–.

"Some acceptable explanation for the failure of the appellant to sue in time must be given before the court is required to consider the substantial question whether it would be just to grant the extension. The door, as it were, must first be opened. No hard and fast rule can be stated defining what may be an acceptable explanation. But at least, in my opinion, it should be held that it is the litigant's failure to sue in time which must be satisfactorily explained."

1. Immediately after the accident the applicant became aware that his injury was compensable under the provisions of the Workers Compensation Act. However, I accept that he then placed little significance upon this knowledge. By June 1983, as a result of advice from the specialist in Adelaide, he was aware of a causal link between the accident and his disability. However, he failed to consult a solicitor about the matter until some nine months later. He is unable to account for that failure other than to say, when asked why he did not claim workers compensation, "I never thought of it in that light".

1. The applicant's duty is to prosecute his claim with diligence or, alternatively, to provide a satisfactory explanation for the delay. See Grattidge v Chaplin, Cox J, 4/1982; Soul v Soul, Cox J, 23/1982.

1. I am satisfied that the delay between March 1984, when the applicant took legal advice in Darwin, and November 1986, when he took legal advice in Hobart, was occasioned by his conscious decision not to pursue the question of legal redress any further. I am satisfied that the decision was based, in part upon the advice given and, in part upon a desire not to be involved with solicitors. Having made that decision before the expiry of the period limited by Limitation Act, s5(1) and having adhered to it during the following 2½ years it would not be just between the parties to now extend the time and permit proceedings to be commenced. Although the applicant was ignorant of the provisions of the Limitation Act, it cannot be said that the legal advice was plainly wrong and that his decision, insofar as it rested on that advice, was based on unsound ground. Part of the advice was that prosecution of a claim was made difficult by reason of the fact that he resided in Darwin. Even when that difficulty was removed by the applicant's return to Tasmania, he did not then seek to pursue his claim. The explanation for the delay is not satisfactory. On behalf of the respondent it was submitted that the applicant's delay had prejudiced the respondent's defence to the claim. No specific matter was identified but an illustration of general prejudice is to be found in a comparison of the evidence of the applicant with that given by Mr Cookson. The applicant said that as it was a wet day and, by the time his business with Mr Cookson was finished, it was time to go home, the latter agreed to drive the applicant to his office. He said that Mr Cookson accompanied him down the stairs and before they reached the landing, warned him to be careful as there was water on the floor. Mr Cookson said he could not recollect seeing the applicant fall. He said that his only recollection was that he understood the applicant had fallen because he reported the presence of water and the accident either that day or the following day to " the manager of the building".

1. It seems to be common ground that the water was rain–water which had entered through a small broken pane in a leadlight window located high above the landing in the wall of the building. The evidence of the date on which the window was broken was very unsatisfactory. Mr Cookson thought it was broken when he first went to work in the building towards the end of 1980 but he was unsure about that. Mr McKillop, a director of the respondent company, said the building was re–roofed in April 1981 and he assumed that if it was broken then, the builders would have repaired it.

1. For a considerable period of time after the applicant's fall, Mr McKillop tried to find a glazier who would repair the broken pane. His efforts proved fruitless and eventually a board was placed over the whole window.

1. Mr Cookson said that he had noticed rain–water on the landing on one other occasion but did not know if this was before or after the accident. Mr McKillop, who did not recall any report of the applicant's accident being made to him, said that on several occasions before the window was boarded up rain came in and he arranged to have it mopped up. However, Mr McKillop is not able to say whether any of these occasions were before or after the applicant's accident.

1. On behalf of the respondent it was also submitted that the applicant had failed to establish a prima facie case that the respondent owed him a duty of care. Reliance was placed upon Lane v Cox [1897] 1 QB 415; Robbins v Joans [1863] 15 CB (NS) 221; Cavalier v Pope [1906] AC 428; Bottomley v Bannister [1932] 1 KB 458. This line of authority which pre–dated Donoghue v Stevenson [1932] AC 562, established an immunity in a lessor of premises from liability for injury or damage caused by the dangerous condition of the demised premises. It was submitted that this immunity has survived the modern developments of the law of negligence since Donoghue v Stevenson and is still good law in Australia.

1. I entertain considerable doubt about the correctness of that submission. In Greene v Chelsea Borough Council [1954] 2 QB 127 at p138 Denning LJ said:–

"During the nineteenth century there was a doctrine current in the law which I will call the 'privity–of–contract' doctrine. In those days it was thought that if the defendant became connected with a matter because of a contract he had made, then his obligations were to be measured by the contract and nothing else. He owed, it was said, no duty of care to anyone who was not a party to the contract. This doctrine received its quietus by the decision of the House of Lords in Donoghue v Stevenson but it has been asserted again before us today. We must, I think, firmly resist the revival of this worn out fallacy. Cavalier v Pope is a relic of it which must be kept in a close confinement."

1. In Dutton v Bognor Regis UDC [1972] 1 QB 373 the confinement suggested by Denning LJ (supra) found expression in the judgment of Sach LJ when he said, after referring to Cavalier v Pope, at p402:

"In the result there is thus nowhere to be found any authority binding this court to hold that the principles enunciated in Donoghue v Stevenson cannot apply to an owner of realty."

1. The expression of opinion by Denning LJ (supra) received express approval from the Court of Appeal in Rimmer v Liverpool City Council [1985] 1 QB 1 at p9. The Full Court of South Australia considered the status of the doctrine in Cavalier v Pope in Parker v Housing Trust (1986) 41 SASR 493. Each of the three members of the court conducted an extensive survey of the English and Australian cases and reached the conclusion that Cavalier v Pope was not good law in this country.

1. However, this application does not require a consideration of the present day status of the doctrine in Cavalier v Pope. From the evidence of Mr McKillop I find that the stairway was not part of any demise granted by the respondent. Each of the tenants of the building was entitled to exclusive occupation of a suite of offices pursuant to a demise granted by a tenancy agreement. The demises did not include the stairway or passageways. Each of the tenants, their employees and any person having lawful business in the building as well as the respondent were entitled to use the stairway. In this sense, the occupancy of the stairway was vested in a number of persons including the respondent. Liability for negligence arising out of the detective condition of premises is based upon the degree of control associated with occupancy. See Duncan v Cammell Laird & Co Ltd [1943] 2 All ER 621 at p627. In the case of more than one occupant, liability is dependent upon the nature and degree of control exercised by each occupant. See Wheat v E Lacon & Co Ltd [1966] AC 552.

1. In the present case there was evidence that the respondent took upon itself the responsibility of maintaining the staircase and the window above the landing. Mr McKillop, in his capacity as a director of the respondent, arranged for the mopping up of the rain–water after it had entered through the broken pane and for the blocking of the window after unsuccessful attempts had been made to have it repaired. In October 1982 the respondent replaced the vinyl covering on the stairway and passages. I am satisfied that the applicant has made out a prima facie case that the respondent owed him a duty of care.

1. The evidence of a breach of that duty is slight. Apart from the belief of Mr Cookson that the window had been broken for some time before the accident, there was no evidence to suggest that as at the 12 August 1981 the respondent knew or ought to have known that rain–water was likely to enter the building and lie on the landing thereby exposing the applicant to the risk of injury.

1. As a result of the failure to provide a satisfactory explanation for the delay, the general prejudice which has flowed from that delay and the weakness of the case against the respondent I am not persuaded that I should exercise my discretion in favour of the applicant and the application is dismissed.