Leinster v Gionotti
[2006] QMC 4
•2 November 2006
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Leinster v Gionotti [2006] QMC 4
PARTIES:
KJG LEINSTER
(plaintiff)
v
DAVID GIONOTTI
(defendant)
FILE NO/S:
M108/05
DIVISION:
Magistrates Courts
PROCEEDING:
Claim
ORIGINATING COURT:
Magistrates Court at Atherton
DELIVERED ON:
2 November 2006
DELIVERED AT:
Atherton
HEARING DATE:
27 October 2006
MAGISTRATE:
Braes TJ
ORDER:
Judgment for the Plaintiff against the Defendant in the sum of $2,891.23
CATCHWORDS:
TORTS – GENERAL PRINCIPLES – spray paint affected neighbours property
COUNSEL:
J Trevino for plaintiff
Defendant appeared on own behalf
SOLICITORS:
The Plaintiff claims the sum of $2891.23 being the cost of removing paint overspray from his Toyota HiLux 183-INL deposited he says on 7 May 2005 as a consequence of the defendant’s negligence.
The Plaintiff operates a kitchen cabinet making business at [address]. On Saturday the 7th May, 2005 he drove his near-new Toyota to his workshop and then for several hours worked in his office preparing quotes and cutting lists. His Toyota was undamaged when he left it outside his workshop that day. He is unsure when he arrived and when he left.
The defendant had been engaged by Ready Mix concrete to paint the concrete batching silos also located in Quilter Crescent. The Ready Mix site is one property removed (the shed of Mr Donnelly a spray painter separates the two) from and is in a southerly direction from the Plaintiff’s property.
The Defendant and his workmen had been engaged in the previous week preparing the silos for painting on Saturday. Photographs exhibited at the hearing show tarpaulins covering the lower levels of the silos and surrounds. The Defendant’s brother who was working on site for the Defendant took the photographs, but he could not recall when they were taken.
By his defence the Defendant admitted that:
1. the Plaintiff owned the Toyota,
2. that on 7 May 2005 he was engaged in the process of painting the concrete silos at Quilter Crescent.
Pursuant to Rule 166(4)(5) Uniform Civil Procedure Rules the Defendant is also deemed to have admitted:
1. (Statement of Claim 3(b)) that the Plaintiff’s vehicle was located nearby while the Defendant was engaged in the process of painting the silos,
2. that green paint was deposited onto the Plaintiff’s vehicle whilst the Defendant was engaged in the process of painting the concrete silos,
3. that the deposit of paint caused the damage and loss alleged,
4. the quantum of the claim being $2891.23.
The question for determination by me is whether the Plaintiff’s loss was caused by the Defendant’s negligence.
The standard and test of negligence is an objective one. It is for me to look into the conduct of the parties, look at the act done or left undone and to determine liability accordingly. In any case of negligence there is always the preliminary question of whether the parties owed any duty to take care and then there is the further question of what events the parties should have foreseen. The onus of proving negligence is upon the Plaintiff and the burden of proof of contributory negligence is on the Defendant. Both are dependent on the civil standard of proof which is proof on the balance of probabilities.
Since Donoghue -v- Stevenson 1932 AC 562 to establish a cause of action for negligence it has been necessary to demonstrate that the defendant owed the Plaintiff a duty of care, to prove a breach of that duty and to prove damage of which the breach of duty was the cause. (Hayne J, Harriton –v- Stephens HCA 2006)
The evidence is not largely in dispute. My findings are as follows.
The Plaintiff drove to work on Saturday 7 May 2005, parked his car outside and went into the office.
The Defendant was painting the silos with green paint using an air less spray gun. Two men worked in a cherry picker while one man remained on the ground. The Defendant had taken some precautions on site to protect neighbouring properties and had placed signs on the fence of the property. He had given notice to Mr Donnelly and Mr. May (Mr May being the business proprietor located adjoining the silo site on the southern side, Mr Donnelly being on the northern side).
The defendant had not given notice to the Plaintiff. The precaution of placing tarpaulins on the fence and Mr Donnelly’s shed and around the base of the silos was insufficient to stop spray drift from falling on to the Plaintiff’s property.
The Plaintiff accessed his work site within the Crescent from the other or northern end and did not drive past the silo site. The Plaintiff had seen the silos being sandblasted, dust had blown over, but he had no knowledge that the silos were being painted.
When the Plaintiff went to leave his workplace that day he found his Toyota, and a lot of his workshop inside and out covered in green paint. At the hearing the Plaintiff produced a metal rack from the Toyota. The covering of green paint on that metal rack would have to be described as more then a fine mist. It showed quite a covering of green paint.
Upon seeing this the Plaintiff went straight to the silo site. He initially spoke to the Defendant’s brother who directed him to the Defendant. The Defendant offered to clean the paint from the Toyota but this was ultimately not accepted by the Plaintiff.
The Defendant having been told of the overspray problem did nothing to investigate the extent of the problem or to interrupt painting. He allowed his workmen to continue painting for several hours after the matter was brought to his attention.
It is clear that the paint that fell on the Plaintiffs property was the paint being sprayed by the defendant on the silos. The Defendant produced a copy of a document from the Bureau of Metrology exhibit two, to show that the wind speed and direction at 9.00am on 7 May 2006 was 8 kilometres per hour from the south-east. This evidence is of little help to the Defendant. The document has no recording at the 3.00 pm time for the day in question. The Defendant did not give evidence of the actual weather conditions throughout the day. The Defendant did not give evidence of the height the workman were off the ground during different times throughout the day. The silos were 25 to 27 metres in height. The Plaintiff said that the weather was very windy and rainy. Obviously the weather was not too rainy as the painting proceeded. Exhibit two shows that there was 1.9 mm of rain to 9.00am on 7 May 2005 and 1.00 mm to 9.00 am on the following day. There was some rain and some wind. No evidence was given by either party of the ability of spray drift to float on the air or what effect an 8kph wind would have on paint being sprayed at a height of 27 metres. I expect that the Bureau of Metrology reading is taken at ground level and is for the “Atherton Shire”. As I have expressed the document from the Bureau of Metrology is of little help.
The Defendant was applying green paint to a cylindrical silo some 27 metres in height, green paint was deposited on the plaintiffs property 60 metres away. I am satisfied that the paint was deposited on the plaintiff’s property as a consequence of the Defendant’s actions.
Mr Trevino raises the principle of res ipsa loquitur – that the matter speaks for itself. Although the burden of proof is on the Plaintiff, cases not infrequently arise in which the cause of the Plaintiff’s injury having been clearly established the circumstances, in which the injury was caused, carry a strong implication that the defendant was negligent. In such cases it may be open to the Court to infer that the defendant was negligent on the basis that the matter speaks for itself – re ipsa loquitur.
The cause of the damage to the Plaintiff’s Toyota does speak for itself. The Defendant was spray painting concrete silos some 25-27 metres in height with green paint. The plaintiff’s Toyota parked some 60 metres away became covered in green paint. There is no substance to any suggestion that the paint could have come from Mr Donnelly’s workshop.
In this case, however, I do not accept that the question of whether the defendant was negligent is able to be inferred from the fact that damage was caused to the Plaintiff’s Toyota.
The Defendant can not be held liable unless he owed the plaintiff a duty to take reasonable care to avoid causing the Plaintiff damage or loss. In general, a duty of care is owed only if the defendant ought reasonably to foresee that his conduct may be likely to cause loss or damage to the Plaintiff or a class of persons to which the Plaintiff belongs.
The Defendant had prepared a hazard risk plan and in accordance with that plan advised Mr Donnelly and Mr May of the intention to paint on the Saturday. The Defendant appeared not to appreciate that he had an obligation to have in mind all those who may be affected by his actions, not just the adjoining neighbours, as is what the hazard risk plan apparently provides. At law in the context of an action for negligence a neighbour is someone who is so closely and directly affected by the act that the defendant ought to reasonably have him in mind as being affected when doing the act.
The Plaintiff was a neighbour in the eyes of the law. He had his business premises located just 60 metres from the Defendant’s activities. He should have been one of the people who the Defendant could reasonably foresee could be affected by overspray from his activity.
The loss suffered by the Plaintiff was reasonably foreseeable. The Defendant owed the Plaintiff a duty of care. The duty of care, to take precautions so that the Plaintiff did not suffer any damage as a consequence of the Defendant’s actions, was not unreasonable.
The Defendant says – although not pleaded, that he cannot be responsible for the actions of careless people like the Plaintiff. There is no evidence to support any argument that the Plaintiff was careless, that he knowingly accepted the risk, or that he consented by his action of parking his Toyota as he did on the day to damage being done to it.
The defendant says – although not pleaded that the Plaintiff should have mitigated his loss by allowing the Defendant to clean the paint off the Toyota. I have not been referred by either party to any law to the effect that an injured party must offer the offending party the opportunity to remedy the injury. The Plaintiff did try himself to clean off the overspray but he was unsuccessful. He was very concerned to do the job correctly as the vehicle was only new. The plaintiff was insured and he elected to have his insurer repair the Toyota. The Plaintiff only did this after phoning the Defendant who abused him. As the Defendant at no stage made an admission that he had caused the damage (the Defendants repeated evidence being that “if” he had caused the damage he would fix it), I do not see how the Plaintiff faced with this situation could have been expected to adopt any other course.
During the hearing in answer to a question from me the Defendant confirmed that upon the Plaintiff bringing his complaint to him he did not act to stop the painting process. The Defendant explained that once the process was started it was necessary to keep going, as the paint in the lines would go off. In fact the two men working in the cherry picker had just come down from spraying when the Plaintiff came and made the complaint. The initial complaint had been made to the Defendant’s brother who had been in the cherry picker. The defendant did nothing at the time of the complaint to investigate the complaint, or to take action to make sure that any spray drift did not continue to fall on the Plaintiff’s property. The Defendant was not being a reasonable neighbour.
The Defendant could have avoided the damage by exercising reasonable care in:
1. advising the Plaintiff of his intentions so that the Plaintiff could take action to cover his Toyota or like Mr Donnelly not go into work that day,
2. not painting when the wind was such as to cause spray drift to fall onto the Plaintiff’s Toyota.
I find that the Plaintiff was a person who the Defendant should have had in mind as a person who might be affected by his actions, that the Defendant owed the Plaintiff a duty of care, that the Defendant breached the duty of care owed to the Plaintiff in that he failed to notify the Plaintiff of his intention to paint the silos and he failed to take precautions to ensure that the paint did not drift onto the Plaintiff’s property, that as a consequence the Plaintiff suffered damage, that the quantum of that damage is in the sum of $2891.23.
I therefore give judgment for the Plaintiff against the Defendant in the sum of $2,891.23.
The parties are to make submissions on the question of costs within 14 days.
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