Lavin v QM Properties Pty Ltd
[2012] QCAT 539
•19 September 2012
| CITATION: | Lavin v QM Properties Pty Ltd [2012] QCAT 539 |
| PARTIES: | Mark Lavin (Applicant) |
| v | |
| QM Properties Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO127-12 (Caboolture) |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 4 September 2012 |
| HEARD AT: | Caboolture |
| DECISION OF: | Bevan Hughes, Adjudicator |
| DELIVERED ON: | 19 September 2012 |
| DELIVERED AT: | Caboolture |
| ORDERS MADE: | The Application for repair costs is dismissed. |
| CATCHWORDS: | NEGLIGENCE – Duty of care – Standard of care – New intervening act – Property damage – Occupier – Road user Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mark Lavin in person |
| RESPONDENT: | Ray Jeffrey and Warren Russell on behalf of QM Properties Pty Ltd |
REASONS FOR DECISION
Claim
15 May 2012 was a bright and sunny day at Pacific Harbour Marina, Banksia Beach. The access road at the Marina was dry. All vehicles were parked. At approximately 8.15am, Mr Lavin drove his Suzuki Jimny into a stationary rope connecting two poles on the access road.
Mr Lavin claims that QM is responsible for the Jimny repairs of $1,086.15[1].
[1] Invoice No. 27730 of ‘Honey, I Scratched The Car’ dated 6 July 2012 (Exhibit 1).
Issues
The issues for me to decide are:
- Did Mr Lavin sue the correct party as occupier?
- Whoever the occupier is, was the occupier negligent?
- Was Mr Lavin negligent?
Did Mr Lavin sue the correct party as occupier?
A fundamental element of Mr Lavin’s claim is that QM owes him a duty of care by its exercise of control over the premises.[2]
[2] Australian Safeway Stores v Zaluzna (1987) 162 CLR 479.
QM denied that it is the owner or even the lessee of the premises and claims that the owner is Pacific Harbour Marina Pty Ltd. QM stated that its only nexus with the premises are two of its directors are also directors of Pacific and that QM sold the land to Pacific in or around 2008.
Mr Lavin said an unidentified member of staff of Pacific Harbour Marina Pty Ltd told him over the telephone that QM owns the premises.
As the Applicant, Mr Lavin must establish his claim on the balance of probabilities[3].
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
Mr Lavin’s hearsay evidence of a verbal statement from an unidentified source of their belief of ownership does not prove the truth of the statement. Mr Lavin was unable to produce any proof of ownership of the premises such as a Certificate of Title from the Land Titles Office.
Mr Lavin has failed to establish that QM has sufficient control of the premises from ownership, leasehold, licence or other use.
Therefore, QM did not owe Mr Lavin any duty of care. The Application is therefore properly dismissed on this basis alone.
Was the occupier negligent?
Mr Lavin was adamant that someone other than himself should be liable for the damage to his vehicle. He claimed that the rope was placed in a dangerous manner, appeared invisible, was not tightened and raised and should have been accompanied by a high visibility post and marker tape.
Because Mr Levin expended considerable time and effort to argue his minor civil claim, I will address each of his allegations.
Placing the rope in a manner that was dangerous
In his application, Mr Lavin states:
“The rope had been placed in a manner that was dangerous, being only 6 – 8” from the ground.”
Mr Lavin said that the rope hung low and he did not see it as he was “looking into the distance” and “not looking down in front of me”. Photographs tendered by Mr Lavin[4] taken one week after the incident show the rope hanging low from the ground.
[4] Bundle of three photographs taken of accident site (Exhibit 3).
QM replied that if the rope was hanging low, it is because it was stretched after being pushed by Mr Lavin’s vehicle or another force.
Importantly, the earliest photograph taken by Mr Lavin is shortly after the incident. There is no photographic or other corroborative evidence of the height of the rope at the time of the incident.
Without this evidence, it is only possible that the rope hung as low at the time of the incident as claimed by Mr Lavin. It is equally possible that the rope hung as low as it did only after the incident.
The standard of proof is not on the balance of possibilities, but probabilities[5]. Mr Lavin has failed to demonstrate the height of the rope at the time of the incident, according to this standard.
[5] Briginshaw v Briginshaw (1938) 60 CLR 336.
Mr Lavin has therefore failed to prove on the balance of probabilities that the rope was placed in a manner that was dangerous.
Tightening and raising the rope
This is also about the rope height. My above findings under the heading ‘Placing the rope in a manner that was dangerous’ also apply here.
Mr Lavin has therefore failed to prove on the balance of probabilities that the rope was not adequately tightened and raised.
Allowing the rope to appear invisible to the naked eye
Mr Lavin claims that the rope was invisible to the naked eye.
Mr Lavin tendered photographs[6] and said that he drove at a speed of approximately four kilometres per hour. He said that while he was wearing sunglasses to prevent glare, the rope and road are a similar colour.
[6] Bundle of three photographs taken of accident site (Exhibit 3).
QM tendered its own photographs[7] and said the rope has been there since October 2010. QM said Mr Lavin knew about the rope from mooring his boat and repairing other boats at the Marina since July 2009.
[7] Photograph of accident site taken from 30 metres (Exhibit 4) and 25 metres (Exhibit 5).
It is reasonable to infer that a driver as familiar with the area as Mr Lavin would or could reasonably have seen the rope. Mr Lavin admitted that he was able to see in his own photograph ropes and other objects further away from the rope with which he collided.
While Mr Lavin’s photographs show the rope and the road are of similar colour, the rope is distinguishable from the road. This is consistent with QM’s photographs taken at a different time and from a more panoramic view. They show the rope clearly delineated against the background.
Mr Lavin has therefore failed to demonstrate on the balance of probabilities that the rope was invisible to the naked eye.
Placing a high visibility post in front of the rope and marker tape along the full length of the rope
Mr Lavin claims that the rope should have been adequately marked and signed by a high visibility post.
Mr Lavin tendered photographs[8] and said that one week after the incident, a visibility post and tape were added to the rope. He also said he had “no recollection” of any sign and he would not have noticed it because it faced away from oncoming traffic.
[8] Bundle of three photographs of accident site (Exhibit 3).
QM tendered its own photographs[9] and said that there were adequate signs and markings. These were a rectangular 900mm x 600mm red sign with the words ‘Strictly No Entry’ in white and large white arrows on the adjoining road pointing away from the access road.
[9]Photographs of accident site taken from 30 metres (Exhibit 4) and 25 metres (Exhibit 5).
The standard of care is not to take the ‘best measures’, but merely to take reasonable measures – a parcel of land cannot be made free of all hazards and an occupier is not duty bound to take further steps to make access or use impossible[10].
[10] Simonds v Isle of Wight Council [2003] All ER (D) 156.
There is no evidence to corroborate Mr Lavin’s assertion that the ‘Strictly No Entry’ sign faced away from oncoming traffic.
None of the photographs were taken before the alleged incident. Facing the ‘Strictly No Entry’ sign away from the direction of oncoming travel would serve no purpose, as two other ‘No Entry’ signs were a few metres in front of it. It is therefore reasonable to infer that the sign was moved by the momentum of Mr Lavin’s vehicle during the collision.
The photographs show the ‘Strictly No Evidence’ sign and the arrows are large and bright. They are sufficiently prominent having regard to their visibility, the low traffic volume and low density of the area.
Mr Lavin has therefore failed to demonstrate on the balance of probabilities that the rope should have been marked with a high visibility post and marker tape.
Conclusion – Occupier negligence
Based on these findings, I conclude that even if the occupier did owe Mr Lavin a duty of care, there is no breach of duty by the occupier.
The application is therefore properly dismissed on this further basis.
Was Mr Lavin negligent?
Mr Lavin said there was bright sunshine, the road was dry and his was the only moving vehicle. Despite this, Mr Lavin said that he had no recollection of any sign and he was looking into the distance and did not see the rope a few metres in front of him.
Motor vehicle drivers owe a duty of care to other road users and occupiers of premises adjoining roads to exercise due care and attention[11]. Therefore, as a user of the road Mr Lavin owed the occupier of the premises adjoining the road a duty of care not to cause injury or harm.
[11] Sutherland Shire Council v Heyman (1985) 157 CLR 424.
The standard of care is that of a driver exercising reasonable care and skill[12]. This entails keeping a proper look-out and obeying relevant signs:
“The duty of a driver is to use proper care not to cause injury to persons on the highway or in premises adjoining the highway. Proper care connotes avoidance of excessive speed, keeping a good look-out, observing the traffic rules and so on.”[13]
[12] Holmes v Mather [1875] LR 10 Ex. 261.
[13] Bourhill v Young [1943] AC 92 at 104.
A driver using reasonable care and skill would have maintained a proper look-out by shifting their view between their immediate foreground, mid-distance and far distance. A reasonable driver also would have or could reasonably have seen the rope, obeyed the prominent ‘Strictly No Entry’ sign and arrows and not attempted to drive a vehicle onto the premises without authorisation.
I therefore find that Mr Lavin’s failure to exercise reasonable care and skill caused the incident and resulting damage.
The Application is therefore properly dismissed on this further basis.
New intervening act
Mr Lavin’s own failure to exercise reasonable care and skill can constitute a subsequent intervening cause rendering the damage to his vehicle too remote to be attributable to the occupier.[14]
[14] Knightley v Johns [1982] 1 WLR 349.
A failure to follow instructions alone can be sufficient to break the chain of causation.[15]
[15] McKew v Holland & Hannen & Cubitts [1969] 3 All ER 1621.
I consider that Mr Lavin’s negligence is a new intervening act causing the damage. The damage to the Jimny is the probable and reasonable result of Mr Lavin’s failure to maintain a proper look-out, failure to observe and obey the signs and arrows and driving onto the access road without authorisation. This means that the damage to the Jimny is too remote to be attributable to the occupier.
The Application is therefore properly dismissed on this further basis.
Conclusion
The Application is therefore dismissed on these grounds:
- That QM did not have the control to owe Mr Lavin any duty of care;
- That the occupier did not breach any duty of care owed to Mr Lavin;
- That Mr Lavin’s own negligence damaged his vehicle; and
- That Mr Lavin’s negligence is a new intervening act rendering the damage to his vehicle too remote to be attributable to the occupier.
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