| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KAY -v- GUY MAZZEO PTY LTD [2002] WADC 216 CORAM : COMMISSIONER GILES HEARD : 7 OCTOBER 2002 DELIVERED : 11 OCTOBER 2002 FILE NO/S : CIV 2081 of 2001 BETWEEN : STANLEY GEORGE KAY Plaintiff
AND
GUY MAZZEO PTY LTD (ACN 009 299 932)
Defendant
ANTHONY PHILLIP WILTSHIRE
Third Party
Catchwords: Application to amend statement of claim by defendant against third party - Whether independent contractors owe one another a duty - Whether duty adequately pleaded
Legislation: Occupiers' Liability Act 1985
Rules of the Supreme Court, O 20 r 9(1)(a)
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Result:
Application granted Representation:
Counsel:
Plaintiff : Mr A J Klein
Defendant : Mr P T Keays
Third Party : No appearance
Solicitors:
Plaintiff : Stephen Browne
Defendant : Downings Legal
Third Party : Minter Ellison
Case(s) referred to in judgment(s):
Brodribb Sawmilling Co Pty Ltd v Gray [1984] VR 321
Donahue v Stevenson [1932] AC 562
Heaven v Pender (1883) 11 QBD 503
Jaensch v Coffey (1984) 155 CLR 549
Minister for Environmental Planning v San Sebastian (1983) 2 NSWLR 268
Case(s) also cited:
Nil
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1 COMMISSIONER GILES: By a writ of summons dated 10 August 2001 the plaintiff claimed damages for personal injuries suffered as a result of an accident that he allegedly suffered on 18 April 2000 when he says he fell from a scaffold while engaged by the defendant to perform carpentry services on the construction of a house. The statement of claim dated 11 October 2001 alleges that the defendant was the occupier of a property, a house at Ellesmere Heights, Hillarys. The plaintiff was engaged as a carpenter to fix a wooden tongue and groove lining board ceiling to part of the ceiling of the house. It further alleges that on 5 April 2000 (not 18 April 2000 as alleged in the writ) the plaintiff suffered an accident while working on scaffolding. He alleges negligence, breach of the Occupational Health and Safety Act (1984) WA ("the Act") and a breach of the duties owed by the defendant as occupier of the house.
2 In its defence filed on 10 January 2002 the defendant did not admit that it was an occupier, or that the accident had happened, or that it had been negligent. It further alleged that if the accident happened it was due to the negligence of another independent contractor, or the plaintiff or both of them. 3 On 10 January 2002 the defendant issued a third party notice against Anthony Phillip Wiltshire alleging that the third party had caused the plaintiff's injury and loss as a consequence of his negligence or alternatively as a consequence of his failure to discharge a duty of care owed by the third party as an occupier of the premises to the plaintiff, pursuant to s 5 of the Occupiers' Liability Act 1985. 4 On 25 February the plaintiff filed a chambers summons seeking to strike out the then-par 6 of the defence as disclosing no reasonable defence. At that time, par 6 alleged that if the defendant was the occupier (which it denied) the accident was caused by the negligence of the third party and claiming the benefit of the defence under s 6(1) of the Act. The history of this chamber summons is a little obscure, although it was clearly heard by various Registrars on various dates between March and August 2002. I gather that as a consequence of these proceedings the defendant amended its defence on a number of occasions to further particularise its allegations against the third party. 5 In the meantime the defendant filed its statement of claim against the third party on 13 May 2002. It alleged that the third party was engaged by the defendant as a carpenter to carry out carpentry work on the house and that the third party was the occupier of the house. It further alleged that if the plaintiff fell from the scaffolding, this was the responsibility of the
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third party and that the defendant is entitled to contribution or indemnity from the third party. 6 The chamber summons filed by the plaintiff opposing the amended defence came before Deputy Registrar Harman in August 2002. By then, the defence had been substantially amended, leaving outstanding the question of whether the defendant had properly pleaded the negligence of the third party, which would permit the defendant to rely on the defence in s 6(1) of the Act. The disputed pleading was in par 12 of the further minute of proposed amended defence dated 2 August 2002. 7 It pleaded as follows: "12. Further or in the alternative:
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(e) In the premises, pursuant to section 6(1) of the Act, the defendant is not liable to the plaintiff." 8 On 9 August 2002 Deputy Registrar Harman refused the defendant leave to amend its defence in terms of par 12 set out above. The matter then came before the court by way of a notice of appeal lodged by the defendant on 12 August 2002. 9 On the basis of the present pleadings it is now common ground that the defendant engaged the plaintiff and the third party as carpenters to carry out work on the ceiling in the house in Hillarys.
Principles for considering application 10 The principles governing a strike-out application as not disclosing a reasonable cause of action or defence are well settled. The seminal decision is Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986. The principles apply with equal force to applications such as this to strike out a proposed defence. 11 They were summarised in that decision as follows: (I have amended them slightly to ensure gender and party neutrality.) (1) The rule is intended to apply only to cases which are really not arguable. (2) On the application all the facts alleged in the statement of claim (or defence) must be accepted as true and it must be taken for granted that on all other points the pleading is unassailable. (3) Great care must be taken to ensure that a plaintiff (or defendant) is not improperly deprived of his or her opportunity for the trial of his or her case by the appointed tribunal. (4) The rule should be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's (or defendant's claim). Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's (or defendant's) case is so clearly untenable that it cannot possibly succeed. (5) As a general rule a plaintiff (and a defendant) is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the
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legal conclusion contended for by the plaintiff or defendant that the pleading should be struck out. (6) A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie.
The plaintiff's submissions 12 The issue between the parties is whether the contents of par 12 of the proposed minute of further amended defence disclose a reasonable defence. Mr Klein on behalf of the plaintiff argued that the matters pleaded by the defendant were not sufficient to establish that the third party owed the plaintiff a duty of care, and should be struck out pursuant to O 20 r 9(1)(a). 13 He argued that on the current state of the pleadings, all the defendant could show was that it engaged the third party and the plaintiff to construct a wooden ceiling in the house. There were no facts alleged which if proved would establish something within the relationship between the plaintiff and the third party which would establish a duty of care between them. 14 The plaintiff submitted that simply because the plaintiff and the third party were both engaged as carpenters to fix the ceiling of the house, that by itself is not sufficient to create a duty of care between them. They were effectively "strangers" and what is required to create a duty is the creation of a relationship or some form of understanding between them which would give rise to the duty. He maintained that there needed to be something to say why the third party should have been looking out for the plaintiff's safety.
The defendant's submissions 15 Mr Keays for the appellant (defendant) argued that the matter had been fully pleaded to establish that a duty of care existed between the third party and the plaintiff. He pointed to the following matters which have been pleaded in the further minute of proposed amended defence: • The defendant engaged the plaintiff to carry out carpentry work to the house including the fixing of the ceiling; (par 4(a)).
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• It also engaged the third party to carry out carpentry work to the house, "including the fixing of the ceiling with the plaintiff". (Emphasis added, par 4(b)). • The plaintiff and the third party were experienced tradesmen carpenters who were responsible for and controlled the manner in which the carpentry work to the house, including the fixing of the ceiling, was carried out; (par 4(c)). • The defendant made available materials to the plaintiff and the third party that could be used as scaffolding although it was not obliged to do so (par 5(a) and (b).) • The plaintiff and the third party used the materials to construct the scaffolding to carry out the fixing of the ceiling. • The third party and the Plaintiff "acting together" carried out the carpentry work to the house including the fixing of the ceiling (par 12(a)(ii) (emphasis added). • The third party knew or ought to have known that if he failed to exercise reasonable skill and care in the manner in which he and the plaintiff carried out the fixing of the ceiling he could expose the plaintiff to a reasonably foreseeable risk of injury (par 12(a)(iii)). 16 Both parties relied upon Donahue v Stevenson [1932] AC 562 and other important decisions such as Heaven v Pender (1883) 11 QBD 503 at 509 and Jaensch v Coffey (1984) 155 CLR 549. There are countless other decisions of appellate courts which deal with these fundamental questions of law. 17 If one looks at Lord Atkins' comments in Donahue v Stevenson, it is difficult to escape the conclusion that the third party in this case owed the plaintiff a duty of care. As Lord Atkins says: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee won't be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." 18 Foreseeability needs to be considered at every stage of the inquiry, including duty of care, breach and loss. As submitted by Mr Keays on behalf of the appellant, the inquiry concerning foreseeability is at its most
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general when considering whether a duty is owed or not. (Minister for Environmental Planning v San Sebastian (1983) 2 NSWLR 268 at 295.) 19 He also referred to a decision of the Full Court of the Victorian Supreme Court in Brodribb Sawmilling Co Pty Ltd v Gray [1984] VR 321. This dealt with the liability owed between Stevens and Gray, both independent contractors working in logging operations. Gray was a "snigger" and Stevens was a truckdriver. Both worked for Brodribb. Whilst Gray was loading a log onto Stevens' truck, the log struck Stevens and he was severely injured. Stevens sued Gray and Brodribb. The trial Judge had held Stevens and Gray was an employee of Brodribb. 20 The court held that Gray and Stevens owed one another duties of care as independent contractors. Starke J (at 335) set out this duty in terms of the neighbourhood principle. It should be noted that Gray and Stevens worked closely together in performing their separate tasks, which is an element said by Mr Klein to be absent from the case as pleaded. However, on my reading of the Full Court decision, the fact that each of their work depended closely on one another was not in itself a decisive factor leading to the existence of a duty of care. 21 If a degree of interdependence between independent contractors is in fact required to create a duty, then I note that this element is in fact pleaded by the defendant in this case by various of the paragraphs in the amended defence referred to above including par 4(b), par 12(a)(ii) and par 12(a)(iii). 22 In a situation where two trades people are engaged to perform the same or similar tasks, in this case the construction of a wooden ceiling, in the same house, even if they are working entirely independently of one another, they would in my opinion owe one another a duty of care. It is not only the physical proximity which creates this duty of care. It is also the inherently dangerous nature of construction sites, the nature of their trade, involving the use of electrical machinery and the lifting of heavy weights and the working at heights from a scaffold. The facts that they were working at the same time, in the same house, on the same task are sufficient in my opinion to create sufficient proximity and foreseeability of risk to create a duty of care. 23 Assuming as we must that the facts asserted in its amended defence by the defendant are able to be established, I conclude that the defendant will be able to establish a duty of care was owed to the plaintiff by the
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third party. It follows from this that the defendant should be permitted to amend its defence in the manner sought. 24 I order that: |