McCluskey v Golden City Support Services Inc (Ruling)
[2024] VCC 983
•3 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-00028
| DENISE MCCLUSKEY | Plaintiff |
| v | |
| GOLDEN CITY SUPPORT SERVICES INC | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2024 | |
DATE OF RULING: | 3 July 2024 | |
CASE MAY BE CITED AS: | McCluskey v Golden City Support Services Inc (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 983 | |
RULING
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Subject:COSTS
Catchwords: Jury trial – costs of proceeding – whether unsuccessful defendant should pay successful defendant’s costs –Bullock or Sanderson order.
Legislation Cited: N/A
Cases Cited:VWA v Kagan [2011] VSCA 91; Berrigan Shire Council v Ballerini (No 2) [2006] VSCA 65; Altamura v Victorian Railways Commissioners [1974] VR 33; Central Goldfield’s Shire v Haley [2009] VSCA 203.
Ruling: Plaintiff to pay third defendant’s costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | R Stanley SC with M Fogarty | Slater and Gordon Lawyers |
| For the First Defendant | S Smith KC with K Manning | Hall and Wilcox |
| For the Second Defendant | D McWilliams | HWL Ebsworth Lawyers |
For the Third Defendant | D McWilliams | HWL Ebsworth Lawyers |
HER HONOUR:
1Following an eleven-day trial the jury returned a verdict for Ms McCluskey in her claim against Golden City Support Services (“Golden City”) but did not find in her favour in her claim against Homes Victoria.
2Ms McCluskey and Golden City are in agreement that Golden City should pay her costs of the proceeding.
3All parties accept that Homes Victoria is entitled to a costs order in its favour.
4In a departure from the usual provision that the successful party’s costs are paid by the unsuccessful party, Ms McCluskey brings this application for an order that Golden City pay Homes Victoria’s costs of the proceeding.
Background
5Ms McCluskey was a disability support worker, employed by Golden City, who worked with a client who lived in a house owned by Homes Victoria.
6The client showered with the shower door open which resulted in the bathroom floor getting wet. On 6 October 2016 Ms McCluskey slipped on the wet bathroom floor, wrenched her shoulder, and suffered injury.
7Ms McCluskey issued proceedings against Golden City and Homes Victoria on 7 January 2021.
8Ms McCluskey alleged that Golden City had been negligent in, amongst other matters, failing to provide a safe place or system of work. She alleged that Homes Victoria had failed in its duty to her as an occupier, to take reasonable steps to avoid foreseeable risk of injury to her by reason of the state of the premises.
9Homes Victoria admitted that it was the landlord and occupier of the premises and responsible for the care, condition and state of the premises. It admitted that it owed the plaintiff a duty to take such care as in all the circumstances of the case was reasonable to ensure that she would not be injured or damaged by reason of the state of the premises or by reason of things done or omitted to be done in relation to the state of the premises.
10On 6 March 2023 Homes Victoria filed a notice claiming contribution from Golden City. On 8 March 2023 Golden City filed a notice claiming contribution from Homes Victoria.
11The discretion to make a costs order of the kind sought must be exercised judicially. The law has developed over years, but the guiding principle is that a plaintiff must establish that a so-called Bullock or Sanderson order is reasonable and just in the circumstances of the case.
12The authorities provide guidance on the matters that should be considered in deciding whether the order sought is just and reasonable.
“Interdependent” or “alternative” claims
13In VWA v Kagan [2011] VSCA 91 the Court noted:
It has long been recognised that in determining whether to make a Bullock or like order, there is no rule but rather a fact specific discretion which must be exercised judicially and according to the justice of the case. The discretion is not to be fettered by any immutable requirement. There is a line of authority recognising that it is commonly inappropriate to make such an order when independent or separate causes of action are alleged against each defendant.
14In that case, the Court of Appeal noted that the requirement was that the claims against the defendants be interdependent or in a real sense, alternative claims, and that the trial judge had misapprehended the test by finding only that the claims were not alternative claims.
15In Berrigan Shire Council v Ballerini (No 2) [2006] VSCA 65 (“Berrigan”) the majority noted that a Bullock type order will ordinarily require that the claims are interdependent or essentially alternative claims.
16In that case, Nettle JA, for the majority, found that the only interdependence between the claims was that some of the facts relied upon to establish liability against the unsuccessful defendant, the Council, were the same as those relied upon to establish liability against the successful defendant, the Commission, and “it was never a case of one or the other but not both being liable”.[1]
[1] Berrigan at [42].
17In Berrigan the claims were not interdependent as there was insufficient commonality between them, and they were not real alternatives because of the likelihood of a judgment against both of the defendants.
18The authorities are clear that a finding that the claims are interdependent or essentially alternatives is not a precondition for a Bullock type order. The justice of the case may still merit an order if there is a substantial connection between the claims.
19In this case the plaintiff says there is such a substantial connection. She slipped on a wet bathroom floor, the floor was wet because of the showering habits of the client, and the system of work required her to enter a bathroom with a wet floor to clean up after the shower. The floor was of a type that, when wet, became very slippery because it had a low slip resistance. The plaintiff relied on expert evidence that the slipperiness of the floor was below Australian Standards, albeit that those Australian Standards did not apply to this particular bathroom. Homes Victoria relied on expert evidence that the floor complied with all building codes and regulations. The plaintiff says both defendants had a duty to her to ensure that the bathroom floor was safe and that this resulted is a significant overlap of the claims and the evidence called in relation to the claims.
20Golden City said there was no interdependence or substantial connection in the claims against it and Homes Victoria. Different duties were said to be owed. Separate and discrete failures on the part of each defendant were pleaded by the plaintiff as causative of her injury. While there was some evidence common to the cases against both defendants, most of the evidence was relevant only to the claim against one or the other.
21Neither party argues that the claims are essentially alternative claims. The plaintiff did not put her case on the basis that one of the defendants was liable but she could not know which one. As in Berrigan it was never the case that either claim could succeed but not both.
22The question is then whether there is interdependency of the claims such as would ordinarily be required for the Court to make a Bullock type order or whether there is otherwise a substantial connection between the claims such that the justice of the case requires such an order.
23Ms McCluskey’s claim against Golden City can be summarised as follows:
(a) it knew about the client’s showering practices, which resulted in a very wet bathroom floor;
(b) complaints about the slippery floor had been made numerous times by numerous people including at staff meetings;
(c) it failed to take any steps to identify the risk posed by the floor;
(d) had it taken those steps it would have identified that the wet floor was a slipping hazard;
(e) it should have taken steps to ameliorate the hazard including;
(i)requesting Homes Victoria to remodel the bathroom to move the shower which would have resulted in less water on the floor;
(ii)requesting Homes Victoria to replace the floor with a non-slip surface;
(iii)providing the client with adequate bathmats and towels to reduce the occurrence of water on the floor.
(f) As a consequence of the above, Golden City failed to provide Ms McCluskey with a safe place and a safe system of work.
24Ms McCluskey’s claim against Homes Victoria, in summary, was that it;
(a) provided a premises with a floor that was very slippery when wet, and that did not meet the Australian Standards;
(b) failed to ensure that the bathroom floor had a non-slip floor surface;
(c) failed to implement a recommendation to remodel the bathroom to move the shower which would have reduced the occurrence of water on the floor.
25Both Golden City and Homes Victoria had obligations and responsibilities in relation to the bathroom floor, and the evidence discloses that maintenance needs at the premises were on occasion, reported by Golden City to Homes Victoria who then undertook the necessary repairs.
26There are common features in the pleadings of the claim against each defendant, in particular, allegations of failure to ensure the bathroom had a non-slip surface and failure to adopt the report of the occupational therapist to remodel the bathroom. The other common features in the pleadings are generic claims (failure to inspect, failure to warn, failing to repair the floor at an earlier juncture) which played little or no role in the matter. It was never seriously contended that Ms McCluskey needed to be warned that the bathroom floor was slippery when wet. It was never seriously contended that the floor needed “repair” or that inspection would have identified the need to repair. The case was primarily fought on the basis that the floor, whilst being typical of bathroom floors and in a reasonable state of repair, should have been replaced because it was very slippery when wet, and, because of the showering practices of the client, was invariably wet after showers.
27It cannot fairly be said that the claims against the defendants were interdependent. The claims against each are distinct. The extent of overlap is limited to aspects of the evidence rather than any element of liability.
28For example, the plaintiff and other witnesses gave evidence that the floor was very slippery when wet. The slipperiness of the floor when wet was a relevant factor in the claim against both defendants. However, the way in which liability was argued against the defendants was not the same. It was uncontroversial that the client showered in a way that made the floor particularly wet. Ms McCluskey’s case against Golden City was that it knew about the danger and failed to take steps to prevent it. There was no evidence, nor was it pleaded, that Homes Victoria was aware of the client’s showering practices or the prospect that the floor invariably became very wet. Nor was it apparent that Homes Victoria was aware of complaints about the slippery floor.
29The case against each defendant cannot be said to be substantially connected to the case against the other. Each case turned largely on its own facts and application of the law. However, neither could it be said that the cases were essentially alternatives. There was a prospect that Ms McCluskey could succeed against both, just as there was a prospect that she could succeed against one but not the other. To the extent that, pursuing one defendant and not the other would expose her to the risk of “falling between two stools” this is really an argument that, in pursuing one and not the other, she might choose the wrong one. Nor is this a case in which she was bound to succeed against one, but could not know which. She could have succeeded against both, she could have failed against both, she could have succeeded against one but not the other. The risk of suing a defendant against whom one does not succeed is a risk that is alive in any litigation. There is nothing about the circumstances of this case that takes it outside the usual situation of requiring a plaintiff to identify a liable defendant. There is nothing that renders the claims against the defendants either interdependent, or essentially alternatives, or substantially connected.
Reasonableness of the joinder
30In Altamura v Victorian Railways Commissioners [1974] VR 33, Kaye JA held that in the circumstances of that case the unsuccessful defendant should pay the costs of the successful defendant. In particular the Court held:
(i)if, at the commencement of the action, it was reasonable for the plaintiff to join the successful defendant, the unsuccessful defendants may be ordered to pay the costs of the successful defendant;
…
(ii)Such an order may be made even though the cause of action alleged against the successful defendant was different from that alleged and made out against the unsuccessful defendants so long as the nature of the duty owed by the plaintiff by all the defendants was the same and arose out of the same factual situation.
…
(iii)The conduct of the various defendants at the trial of the action, each striving to inculpate the other for the plaintiff’s injuries, may provide evidence for the reasonableness of the joinder.”
31In Berrigan; Callaway JA, in the minority, considered that the question of the reasonableness of the plaintiff’s conduct in joining the successful defendant did not necessarily turn on the question of the conduct of the unsuccessful defendant and revolved around a single question – whether, in the particular circumstances of the case it is fair, as between the plaintiff and the unsuccessful defendant, that the unsuccessful defendant pay the successful defendant’s costs.
32In many of the authorities, the reasonableness of the decision to join the successful defendant is, however, inextricably linked to some conduct on the part of the unsuccessful defendant. Often the conduct relied on is that the unsuccessful defendant essentially sought to exculpate themselves by pointing to the successful defendant as the liable party.
Ms McCluskey’s submissions
33Ms McCluskey relies on the following matters as evidence of conduct by Golden City that favours granting her application:
(a) In answers to interrogatories Golden City said it was not responsible for repairs, maintenance or improvements to the premises which were rented from the Department;
(b) Counsel for Golden City, in his address to the jury, told them that they would have to consider what Golden City could have done differently and whether an alternative was reasonably practicable, and told them that Golden City had no power to modify the home or conduct repairs to the home;
(c) Counsel for Golden City put to the plaintiff that it was not Golden City’s role to go ahead and make modifications to the house. Ms McCluskey said she did not know;
(d) Ms Hicks, a witness for Golden City, said, in answer to a question that she would have been petitioning Homes Victoria to accept the recommendations in an occupational therapy report about bathroom modifications, “I don’t recall, yes”;
(e) Counsel for Golden City put to Ms Polsen, a witness for Homes Victoria, that replacing the floor surface in the bathroom could not be done without Homes Victoria’s approval, to which Ms Polsen said it was unlikely, but that it could be done;
(f) Golden City did not discover schedule contract orders, which showed that requests by Golden City for maintenance were attended to by Homes Victoria;
(g) Golden City did not discover the report of occupational therapist Teagan Lear which recommended the bathroom be remodelled and that some other works be undertaken. Homes Victoria undertook the other works;
(h) Golden City did not discover the report of occupational therapist Gabrielle Shirley;
(i) Golden City gave in answer to an interrogatory that it had raised a concern with Homes Victoria about leaking in the bathroom at the premises which had caused a rotting architrave, and Homes Victoria had replaced the architrave;
(j) Golden City failed to accept Ms McCluskey’s statutory counteroffer made 25 November 2020.
34Ms McCluskey said that this was conduct which either implicitly pointed the finger at Homes Victoria as the party with power and responsibility to repair and maintain the premises, or in the alternative prevented her from knowing and understanding the relationship between Golden City and Homes Victoria so as to be able to determine which was the appropriate defendant.
35Ms McCluskey says that had she not joined Homes Victoria, she was at risk of “falling between two stools”. The plaintiff was not in a position to know or understand the relationship between Golden City and Homes Victoria in respect to repairs and maintenance. This created a clouded perception that Golden City might just be a service provided, with no responsibility for the maintenance of the bathroom floor.
36The report of Teagan Lear was a crucial document. In that report Ms Lear identified modifications to the existing bathroom that would improve access for the client and staff. That report was not made available to the plaintiff by discovery from Golden City. Golden City was also deficient in its discovery obligations more generally, including by failing to discover the contract schedule orders which showed maintenance requested by Golden City and undertaken by Homes Victoria, and by discovering minutes of meetings in a piecemeal fashion, including during the running of the trial.
37Ms McCluskey could have failed against Golden City if it turned out that it had taken all reasonable steps in relation to the bathroom floor, and it was Homes Victoria which had failed to make appropriate changes. Alternatively, it might have transpired that the bathroom floor vinyl was of a type that was unsuitable but that Golden City was not, and could not reasonably have been, aware of the defect. Golden City would not be liable for the unsuitability of the floor vinyl and Ms McCluskey would have been left without a party to sue.
Golden City submissions
38Golden City say Ms McCluskey always intended to sue Homes Victoria, well prior to any discovery, as is apparent from the draft Writ that accompanied her serious injury application.
39The prospect that Ms McCluskey would have fallen between two stools was not realistic, given that to find in favour of Golden City a jury would need to be satisfied that it had provided a safe place and a safe system of work. If the floor was, in fact, unsafe, that finding could scarcely be open. Similarly, if Golden City was aware of a problem with the floor and had requested that the floor replaced, but Homes Victoria had failed to do so, it would not be open to a jury to find that Golden City had discharged its duty, given the non-delegable nature of that duty.
40Findings In Central Goldfield’s Shire v Haley the Court held that the conduct of the unsuccessful defendant “must be such as to make it fair to impose some liability on it for thecosts of the successfuldefendant.][2] Such conduct will be found where the unsuccessfuldefendant tells the plaintiff in one way or another that it should look to the successfuldefendant for its remedy or has done something to induce the plaintiff to maintain its suit against the successful defendant”.[3]
[2] [2009] VSCA 203 at [9].
[3] Ibid.
41In Berrigan Nettle JA said there was nothing about the argument made by the Council which could have misled Mr Ballerini on the facts, or otherwise induce Mr Ballerini to believe that he had a case against the Commission that he did not have.
42As in Berrigan, in this case, there was no conduct by Golden City that could have induced Ms McCluskey to consider it had a claim against Homes Victoria. Golden City did not plead that Homes Victoria was liable, made no submission at trial that Homes Victoria was liable, did not address the jury on the question of contribution in the event that both defendants were found negligent, and did not cross examine the expert called by Homes Victoria. To the extent that Golden City identified that it had no power of capacity to remodel the bathroom or change the floor, I accept that this was a statement of fact, not an attempt to point the finger at Homes Victoria.
43To the extent that Golden City was deficient in its discovery, those deficiencies did not hinder Ms McCluskey’s capacity to assess the risks associated with her case against Homes Victoria or cause her to believe she had a stronger case against Homes Victoria than she had. Issues that arise from Golden City’s late discovery of documents at trial might have a bearing on costs issues as between the parties in Ms McCluskey’s claim against Golden City. I am not persuaded that they comprise “conduct” of the kind that is envisaged in the authorities that could give rise to a Bullock type order being made.
44In fact, it appears that Golden City made a deliberate decision to avoid any suggestion that it engaged in conduct of the kind that might warrant such an order. It ultimately declined to call a witness about the relationship between Golden City and Homes Victoria in relation to the repair and maintenance of the premises, which the plaintiff submitted to the jury exposed it to an inference that the evidence of that witness would not assist Golden City’s case. It made no submission to the jury about the relative liability of the two defendants.
45In Berrigan the Council had denied it was liable and said that, if anyone was liable it was the Commission. However, Nettle JA noted that “just as importantly…it can hardly be doubted that Mr Ballerini would have joined the Commission regardless of the Council’s allegations.”[4]
[4] At [43].
46In this case, it is apparent that Ms McCluskey was always going to sue Homes Victoria. This was not an unreasonable decision. However, making a reasonable decision to sue Homes Victoria is not enough to warrant a Bullock type order. A losing party cannot point to the reasonableness of the decision to sue, to avoid the usual costs consequences. In this case, I am not persuaded that there is something else in the circumstances of this case that takes it outside the usual costs consequences. The claims are not interdependent, essentially alternative, or closely connected, and there is nothing in the conduct of Golden City to warrant the order. The interests of justice do not require the order sought.
47Accordingly, I will order that the plaintiff pay the third defendant’s costs of the proceeding.
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