McDonnell v Green
[2002] QDC 300
•21 November 2002
DISTRICT COURT OF QUEENSLAND
CITATION:
McDonnell v. Green & Ors. [2002] QDC 300
PARTIES:
MICHAEL McDONNELL (Plaintiff)
And
GRAHAM MAXWELL GREEN (First Defendant)
And
HARBRAE PTY LTD T/AS RAY WHITE MOOLOOLABA (Second Defendant/First Third Party)
And
AILEEN GALLON HARRINGTON (Second Third Party)
FILE NO/S:
D264 of 2000
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Maroochydore
DELIVERED ON:
21 November 2002
DELIVERED AT:
Maroochydore
HEARING DATE:
12-14 November 2002
JUDGE:
Judge J.M. Robertson
ORDER:
1. Judgment for both the defendants against the plaintiff.
2. The first defendant’s claim for indemnity and contribution against the second defendant/first third party is dismissed.
3. The first defendant to pay the second defendant/first third party’s costs of the third party proceedings to be assessed on the standard basis.
4. The plaintiff to pay the second defendant’s costs of and incidental to the claim, including any reserved costs, to be assessed on the standard basis.
5. The plaintiff to pay the first defendant’s costs of and incidental to the claim, including any reserved costs, and including the costs that the first defendant has been ordered to pay to the second defendant, third party, to be assessed on the standard basis.
CATCHWORDS:
OCCUPIER’S LIABILITY – Duty of landlord to entrants upon leased premises – scope and extent of duty of care owed by landlord to entrants – who is the “occupier”?
CONTRIBUTION AND INDEMNITY – Duty of care of landlord where property is managed by real estate agent
COSTS – Offer made by wholly successful defendants – r.361 UCPR
Cases cited:
Northern Sandblasting Pty Ltd v. Harris (1997) 188 CLR 313
Jones v. Bartlett (2000) 205 CLR 166
Watson v. George (1953) SASR 219
Voli v. Inglewood Shire Council (1963) 110 CLR 74
Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479
Wilkinson v. Law Courts Limited [2001] NSWCA 196
Sutherland Shire Council v. Heyman [1984-1985] 157 CLR 424
Clarke v. Banfield & Ors [1999] QDC 271 (unreported judgment of Judge Samios, 26.5.2000)
Le Lievre v. Gould [1893] 1 QB 491
Naomi Marble and Granite Pty Ltd v. FAI General Insurance Company Limited (No. 2) [1999] 1 Qd R 518
Calderbank v. Calderbank [1975] 3 WLR 586
Multicon Engineering Pty Ltd v. Federal Airports Corporation (1996) 138 ALR 318Statutes cited:
Uniform Civil Procedure Rules, r.361COUNSEL:
M.J.F. Burnett (for the Plaintiff)
T. Matthews (for the First Defendant)
B.F. Charrington (for the Second Defendant/First Third Party)A.G. Harrington (Self-represented)
SOLICITORS:
Boyce Garrick (for the Plaintiff)
Quinlan Miller & Treston (for the First Defendant)Carter Newell (for the Second Defendant/First Third Party)
The plaintiff claims damages for personal injuries.
On the 21st May 1999 in the afternoon, the plaintiff slipped and fell and injured his shoulder on a driveway on a property situated at 25 Tarwarri Crescent, Mooloolaba (“the premises”) and owned by the first defendant (Mr Green) and occupied as a tenant by the second third party (Mrs Harrington). The plaintiff then lived next door to the premises, at 23 Tarwarri Crescent, and had done so for approximately five years. Mrs Harrington leased the premises in March 1999 from Mr Green at or around the time he completed the purchase of the premises from a Mr and Mrs Maynard, an elderly couple who had lived there throughout the time the plaintiff lived next door. Mr Green lives in Sydney and the second defendant/first third party (Ray White) were his managing agents for the premises and had arranged the lease to Mrs Harrington.
The plaintiff’s case against Mr Green is pleaded as follows:
“The aforesaid incident which occurred was caused or contributed to by the negligence of the First Defendant, his servants or agents, and/or in the alternative, caused and/or contributed to by the negligence of the Second Defendant, its servants or agents, particulars whereof are as follows:
(a) failing to warn the Plaintiff that the said driveway and the paved area was slippery, and when a reasonably prudent person would have done so;
(b) causing and/or allowing varnish or a similar type substance to be present on the said paved area, and when a reasonably prudent person would not have done so;
(c) failing to remove the said varnish and/or similar type substance from the said paved area when a reasonably prudent person would have done so;
(d) failing to ensure that the said paved area provided adequate footing for people traversing same, particularly when the said paved area was wet, and when a reasonably prudent person would have done so;
(e) failing to act on a complaint that the said driveway and paved area was slippery and when a reasonably prudent person would have done so particulars of which are:-
(i) An oral complaint was made by Aileen Harrington (“Harrington”) to an employee of Ray White Mooloolaba whose name is not known to Harrington on a date which Harrington is not now able to recall but which was prior to the accident on 21 May 1999, the substance of which was that something had to be done about the driveway of the said premises as it was quite dangerous and very slippery.
(f) failing to apply any or any adequate non-slip or slip-resistant type surface to the said paved area, and when a reasonably prudent person would have done so;
(g) failing to properly inspect the premises.”
Mr Green commenced third party proceedings against Ray White and Mrs Harrington on the 16th July 2001. It was ordered that Ray White be joined to the claim as second defendant. The claim against them is pleaded upon the basis of an implied term in the exclusive property management agreement between Mr Green and Ray White:
“(o)It was an implied term of the Exclusive Property Management Agreement that the Second Defendant would, in the course of its marketing and managing the premises:-
(i) Maintain a proper lookout for any hazards or dangers which were identifiable to a reasonably prudent Property Manager, and to take appropriate action in the circumstances;
(ii) To give notice to the First Defendant on receipt of a complaint or notification of any serious safety risk relating to the premises;
(p) Further or alternatively, the Second Defendant owed the Plaintiff a duty in the circumstances to:-
(i) Present the premises on the residential rental market in a manner that was so far as practicable, safe and without risk to any persons who would lawfully enter upon the premises;
(ii) Properly take action with respect to any hazards or potential hazards identifiable upon inspection by a reasonably prudent Property Manager and/or to promptly notify the First Defendant of any such hazards or potential hazards;
(iii) Carry out its functions, by its employees, servants and agents, in a proper and professional manner;
(iv) Carry out its functions, by its employees, servants and agents, with all due care and skill;
(v) Take reasonable and appropriate action in response to a complaint or notification of any safety risk relating to the premises;
(q) Further or alternatively, it was reasonably foreseeable to the Second Defendant, being responsible for the provision of property management services pursuant to the Exclusive Property Management Agreement, that if such services were not properly carried out, same may cause loss and damage to a class of persons of which the Plaintiff was one;
(r) Prior to the Plaintiff’s slip and fall as alleged herein, the Second Defendant had received a complaint or notification of a serious safety risk relating to the premises (“the complaint”).”
The amended claim takes up the claim against Mr Green set out above against Ray White as well, and to some extent is incompetent. Mr Burnett was not responsible for the pleading.
The defendants deny negligence and plead contributory negligence in the alternative.
It is common ground that prior to Mr Green’s purchase of the premises, Mr Maynard was in the habit of regularly (once a month on average) coating the paved area of his driveway with some form of glossy substance. The plaintiff observed this during his occupancy of the house next door prior to the incident. The plaintiff’s house is very close to the driveway as can be seen in photograph 1 in Exhibit 14. Mr Maynard was an elderly man – in his late 70’s or early 80’s in the plaintiff’s estimation, and his wife was also an elderly person. The plaintiff said he had been on the premises once while the Maynards were there, although it was opened that he had been there a handful of times. He had never seen anyone slip on the driveway; and in particular he had never seen Mr or Mrs Maynard slip.
On the day of his fall, he had been at home in his garage when he was approached by Mrs Harrington. They had a conversation about a social outing that she had arranged with the plaintiff’s wife Toni. Toni was not at home, so it was arranged that when she returned someone would come over and tell Mrs Harrington the arrangements. When the wife returned the plaintiff walked over to the front door of the premises. It had been raining, and the plaintiff says it was then lightly drizzling. He walked across the driveway behind Mrs Harrington’s car which was parked on the driveway near to the garage door. The driveway slopes gently down to the roadway. He was bare foot. He spoke to Mrs Harrington at her front door which is behind some ferns as depicted in photo 5 in Exhibit 14. He then walked back slightly downhill towards his property and he walked behind Mrs Harrington’s car. As his feet contacted the driveway he slipped and fell. He is right hand dominant and he thrust out his right hand to break his fall. He felt immediate pain in the right shoulder area, and heard a crunching sound. He lay on the ground to compose himself, he then got up and walked home. He said he felt foolish for having slipped.
The plaintiff gave evidence, and Mrs Harrington gave evidence on his behalf. The plaintiff told me that his wife Toni had got to know Mrs Harrington since she’d moved in to the premises; and they had spoken in the front yard, and indeed that night they all went out together. The plaintiff says he only knew Mrs Harrington slightly, and she confirms his evidence.
Her evidence is critical to the plaintiff’s case. The plaintiff’s case is that the driveway when wet presents a danger to persons such as himself, that is people lawfully entering on the premises. Up until the incident, he had seen nothing to suggest to him that the driveway was dangerous because of the glossy substance placed on it by Mr Maynard. He had certainly made no complaint to anyone about it. Mrs Harrington however says that from shortly after she moved into the premises she became aware of the hazardous nature of the driveway. Her evidence is that from March 1999 to the 21st May 1999, a number of visitors to the premises actually slipped, and one man who was carrying a heavy piece of furniture actually fell over. She says that she was so concerned that she would greet each visitor with a warning to “watch the driveway”. She said the driveway was like an ice rink. Importantly, she says that when she would pay her rent in person at the office of Ray White which occurred weekly, she would tell the person receiving the rent about the driveway. She recalled in cross-examination (apparently for the first time) that she spoke to Amber or Cheryl about this issue. She is in real estate herself; and she is obviously an intelligent person. She says she did not make any formal complaint, however each time she paid her rent she would say things like “Get someone to come out and do something about the driveway”, “It is like an ice rink”, “It has been polished”. She says she informed staff of Ray White of the people slipping and the man falling. If accepted, this evidence would be potentially damaging particularly for Ray White. Her evidence is significantly challenged. In cross-examination Mr Charrington effectively called Mrs Harrington a liar, which she hotly disputed. He lead through her a number of previous signed statements which appear to be significantly contradictory of her evidence before me, and he has called evidence from his client’s staff which, if accepted, would amount to a finding that prior to the 21st May 1999 no complaints about the driveway were received by Ray White. Mrs Harrington does not say that she ever made any complaint to Mr Green.
Findings of fact
(a) Mrs Harrington
As I have noted, Mr Charrington on behalf of the second defendant mounted a spirited attack on the credibility of Mrs Harrington. I have previously set out the effect of her evidence in chief on behalf of the plaintiff. The difficulty for her is that she admits to making a number of prior inconsistent statements which are now in evidence. The first in time is Exhibit 15 which is an undated signed statement she admits she gave to the plaintiff’s Solicitor Michelle Beattie in September 1999. Despite saying this in paragraph 17 of the statement:
“17. I recall that prior to the incident where Mr McDonnell slipped and injured his shoulder there had been four (4) other occasions where people had fallen on the slippery driveway including myself. I say that the driveway is very dangerous and even if it is dry it is still very slippery.”
and despite saying in paragraph 18 that on the following day
“I had a discussion with the property Managers at Ray White. I informed the Property Manager that some action had to be taken immediately to remedy the dangerous situation or words to this effect.”
at no time does she ever assert in that statement that she had, prior to the occasion referred to in paragraph 18, complained to Ray White or notified them of her concerns over the driveway in any way. The next statement in time is a statement she gave to a loss assessor on the 8th October 1999 (Exhibit 16). There are a number of inconsistencies with her testimony before me. Firstly, Mrs Harrington says that up until the night of the incident she had never socialised with the plaintiff or his wife, and that her contact had been primarily with the wife. She says:
“4.I met Michael McDonald (sic.), who resided at 23 Tarwarri Crescent, when I first moved in. They were neighbours and came over and introduced themselves. It was Michael and his wife Toni, and they have a small daughter Peta who is 12 years old.
5.We were friendly, but not in each other’s pockets. Michael had his own business cleaning wheelie bins.
6.I would see them 1 or 2 times a week. It was normally when we visited each other’s homes for a cup of coffee. Whenever they came over they would cut across the driveway.”
She says now that it is just not true that they visited each other’s homes for cups of coffee.
Mrs Harrington said on a number of occasions, in effect, that she has been asked so many times about this incident, she has become confused and she has signed statements without properly reading them. The difficulty with that proposition is that in the original typed statement Exhibit 16 paragraph 7 read:
“7.They never made any mention of the driveway being slippery.”
It was crossed out by Mrs Harrington and she wrote in “It was mentioned a few times” and initialled the amendment. I can only conclude that she did read this statement carefully, to the extent that she made a significant change and initialled it.
There are other less significant variations in the statement, however at paragraph 13 she states:
“I went to the Real Estate Agent on the morning of Saturday 22 May 1999. I told one of the girls what had happened and she said she would tell Pam. I had told them before, just the once, that the driveway was slippery.”
She does not otherwise suggest that she notified Ray White, and she does not suggest that she had told them that people had slipped and indeed one had fallen. Exhibit 18 is the third statement chronologically provided by Mrs Harrington. It is dated the 21st October 1999, and therefore comes after the statement to the loss assessor. It is common ground that this statement was also given to Michelle Beatty, a partner with the plaintiff’s Solicitor’s firm. Mr Burnett submits that I should treat that second statement as an addendum to the earlier statement to the Solicitor. This is so because of paragraph 1. His argument then is that, if you ignore the statement to the loss assessor, this statement then becomes part of the first and evidences a consistency in Mrs Harrington’s statements to this extent that she has always said that she made at least one complaint to Ray White. He submits that these two statements should be given more weight because they are the only ones made to a Solicitor. I reject that submission. Mrs Harrington is obviously an intelligent woman. She did not mention anything about making prior complaints to Ray White, despite raising that very issue in paragraph 16 relating to her complaint about the plaintiff’s fall. Secondly, I can see no reason to discount the weight to be given to a statement of a witness simply because it is made to a loss assessor, or someone other than a Solicitor. In any event, on that issue she does mention in paragraph 13 an earlier complaint. On the 20th October 2000 she wrote to the Solicitors for the first defendant. The signed letter is Exhibit 17. In there she stated:
“It is true that I was a tenant in the said premises at the time of his accident, however I was only there for three months, during which time I reported it to Ray White Real Estate Agents on a few occasions. Other than doing that, it was not my responsibility as a tenant to re-surface the driveway.”
Another difficulty arises when one compares her evidence at trial to the earlier statements. The one complaint has become many, she has added an incident where someone actually fell, and she has mentioned for the first time that she was so concerned that she got into the habit of saying to everyone “Hi, how are you. Watch the driveway.” She has added detail to the terms of the complaint, e.g. ““You’ll have to get someone to come and look at it, it’s like an ice rink”. I remember telling them that. That was very soon after I had moved in.”
When challenged about the evidence of frequent reports to Ray White, Mrs Harrington said on more than one occasion that these were not formal complaints as such, unlike the complaint she made immediately after the plaintiff’s fall. She accepts that Pam Maloney from Ray White was the person who introduced her to the premises and with whom she had all her dealings leading up to taking possession, and it was to her that she complained after the plaintiff fell. She accepts that prior to the incident she did in fact complain to Pam Maloney on at least two occasions about matters of complaint relating to the premises. The first concerned the green shag pile carpet in the premises, and that complaint was very early on in her tenancy, and on the 15th April 1999 she contacted her about a sliding door. It seems to me entirely improbable, given her relationship with Ms Maloney and the fact that she had complained to her at least twice prior to the incident, that she would not have complained to Ms Maloney about the driveway if she in fact did complain to Ray White. Mr Charrington called evidence from Amber Werchon . She has worked for Ray White since February 2000. During the whole of 1999 she was in Year 12 at Nambour High School. It follows that she could not have been the person that Mrs Harrington says she made complaints to in 1999. Mrs Harrington accepts that she has made a mistake.
I find that it is more probable than not that Mrs Harrington did not complain to staff members of Ray White about the driveway prior to the 24th May when she complained to Ms Maloney.
(b) Mr Green
I accept Mr Green’s evidence without hesitation. It follows that in the unusual circumstances of his purchase of the premises, he had never actually gone onto the premises and conducted an inspection. All the negotiations with the Maynards were conducted by telephone from Sydney, and I find that he knew nothing of the driveway until notified of the fall by Pam Maloney on the 24th May 1999.
(c) The plaintiff
I find the plaintiff to be a credible witness. His evidence about payments in cash to his son does not cause me to doubt his reliability in relation to the circumstances of the fall. The plaintiff’s evidence establishes that over the five or so years he had been living next door, and despite the many times he had seen Mr Maynard re-sealing or polishing the driveway, he had never seen anyone fall, nor had he heard anything to suggest that the driveway when wet presented a danger. I accept his evidence about pain and suffering and loss of amenities and the level of care provided by his wife.
(c) Ms Maloney
She was the property manager for Ray White at the relevant time. She gave evidence of her dealings with Mr Green and the exclusive property management agreement with him. She also gave evidence of the systems in place at the office to deal with complaints. Until the 24th May 1999 she had received no complaints from Mrs Harrington or anyone else about the driveway. She had been to the property on a number of occasions when it was dry, including for the purposes of a pre-tenancy inspection which is quite stringent because of the requirements of the Residential Tenancies Act. She noticed the driveway, but nothing caused her concern. She was an impressive and persuasive witness. She struck me as a person who was extremely conscientious about standards of work particularly when it came to issues of safety. I am satisfied that it is highly improbable, given the system in place for recording complaints, that is the book and voice mail, that she would not have received a complaint from Mrs Harrington if one had been made prior to the 24th May 1999.
The law
The leading authorities on negligence and duty of care of landlords to tenants and others are Northern Sandblasting Pty Ltd v. Harris (1997) 188 CLR 313 and Jones v. Bartlett (2000) 205 CLR 166 in which the earlier case was considered and the principles established more clearly defined. Neither of those cases involved injuries to entrants onto the leased premises, but the principles enunciated are applicable. In their joint judgment Gummow and Hayne JJ (who were in the majority) said at page 211:
“Since the decision in Northern Sandblasting, there has been uncertainty in the law with regard to the liability in tort of landlords to tenants, occupiers and other entrants of residential premises respecting the unsafe condition of such premises. To dispose of this appeal, it will be appropriate to consider the state of the common law in Australia following Northern Sandblasting, and then the scope and contents of the duty, if any, cast upon landlords, first in respect of tenants and secondly in respect of other persons upon the premises. Finally, it will be necessary to consider the content of such duty and its susceptibility to delegation.”
Their Honours then proceeded to review the authorities at common law. At pages 213-4 they said:
“The landlord’s duty to the tenant
The starting point is to consider the relationship between the landlord and tenant. In Northern Sandblasting, in a passage with which Gummow J agreed, Dawson J said of the duty of care between the landlord and a guest lawfully upon the premises that it was: “that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in the particular instance depends upon the circumstances of the case.”
This statement also holds true of the duty between the landlord and tenant. However, it is only the beginning of the inquiry. The difficulty lies in determining the nature and extent of any duty that exists and that which constitutes a breach thereof. The “circumstances” to be considered may differ between landlord and tenant and landlord and other persons. There is no necessary correlation between the respective duties, although the latter is likely to be less stringent than the former. This case, like Northern Sandblasting, is concerned with a letting for residential purposes. What follows is to be understood with that in mind.”
Under the heading “Dangerous defects and ordinary use” their Honours make a number of observations which are pertinent here. They commence their observations with the question “What then may constitute a dangerous defect?” They answer that question, relevantly to the circumstances here as follows:
(at p217) “They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use …
Moreover, the danger must appear in the course of the use of the premises for the purposes for which they were let.”
At p218 their Honours then deal with the duty to ascertain dangerous defects.
“The diligence required to ascertain dangerous defects will not in the ordinary case require the institution of a system of regular inspection for defects during the currency of the tenancy.”
After quoting earlier with approval a passage in the judgment of Ligertwood J in Watson v. George (1953) SASR 219 (a case which defined the scope of this aspect of the duty in terms of contract), their Honours (at p220) translate that approach to tort by reference to the judgment of Windeyer J in Voli v. Inglewood Shire Council (1963) 110 CLR 74 at 74:
“As Ligertwood J recognised in the above passage, where the existence of a dangerous defect was merely a possibility (albeit one later realised when the plaintiff was injured), the steps a landlord was required to undertake were only those that would be taken in the course of “ordinary reasonable human conduct”. The matter is not an exercise of hindsight. The identification of the requisite steps will depend, among other things, upon whether an ordinary person in the landlord’s position would or should have known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps.”
Their Honours then deal with discharging the duty of care and delegability which arises in the circumstances here. They say (at p221):
“The context of the landlord’s duty in a case such as the present is not one of strict liability, to ensure an absence of defects or that reasonable care is taken by another in respect of existing defects. It is not a duty to guarantee that the premises are safe as can reasonably be made.”
Finally, their Honours deal with the consideration as to whether a landlord owes to others upon residential premises a lesser duty than that owed to the tenants themselves. They commence their discussion of this topic (at p222) with a statement of general principle:
“The general principle, consistently with Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 is that liability for injury suffered by an entrant upon residential premises primarily will rest with the occupier. A tenant in occupation, rather than the landlord, has possession and control with power to invite or to exclude, to welcome in or to expel. Those asserting the duty often will be the guests or invitees of the tenant … It will be the tenant who is best placed to inform such persons of any dangers or defects and the tenant who “is more directly in touch with emerging repair needs than a landlord who has surrendered possession.”
Their Honours go on to say (at p222):
“… The landlord’s duty to take reasonable care that the premises contained no dangerous defects, owed in the sense earlier described to tenants, extends to those other entrants we have identified.
Nevertheless, the duty of the landlord owed to these third parties, in many cases, will be narrower than that owed to them by an occupier such as a tenant. An example of facts not involving the placing of a duty on a landlord is a slippery floor: Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 …. The duty of care of the landlord to the third party is only attracted by the presence of dangerous defects in the sense identified earlier in these reasons. These involve dangers arising not merely from occupation and possession of premises, but from the letting out of premises as safe for purposes for which they were not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known.”
Although it is always difficult to find authorities with analogous facts, I note that Jones v. Bartlett has been applied so as to deny a plaintiff in New South Wales in Wilkinson v. Law Courts Limited [2001] NSWCA 196 (a plaintiff who was leaving the Law Courts building and who fell and injured himself on some external stairs).
Mr Charrington submits on behalf of the second defendant that his client does not owe a duty of care to persons such as the plaintiff. No Counsel was able to refer me to any authority which established that the manager of a tenanted property owes a duty to entrants in the plaintiff’s class who might come onto the premises at the behest of the tenant. Mr Burnett attempted to persuade me that there was the requisite proximity by reference to basic principles. In Sutherland Shire Council v. Heyman [1984-1985] 157 CLR 424 at 497, Deane J said:
“The requirement of a relationship of proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed. Given the general circumstances of a case in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction. On the other hand, the identification o the content of that requirement in such an area should not be either ostensibly or actually divorced from notions of what is “fair and reasonable” (c.f. per Lord Morris of Borth-y-Gest, Dorset Yacht Co. v. Home Office ([1970] AC at pp 1038-1039) … or from the considerations of public policy which underlie and enlighten the existence and content of the requirement.”
Counsel have referred me to the case of Clarke v. Banfield & Ors [1999] QDC 271 (unreported judgment of Judge Samios, 26.5.2000). In that case the plaintiff tenant sued the defendant landlord for damages for negligence and/or breach of contract, and the defendants joined the real estate agent as a third party. In circumstances, quite different from here, the plaintiff succeeded, and the defendant was to that extent successful against the third party. There is nothing in that decision that supports the proposition that there is a recognised duty owed by a real estate agent managing a property to entrants onto that property, or anyone outside the triumvirate of the agent, tenant and landlord. The plaintiff’s case is not based on any notion that Ray White had the control of the property requisite to giving rise to a duty of care to entrants, as opposed to tenants, where the legal relationship is usually governed by contract. I have already referred to Australian Safeway Stores and by application of the principle in that case to the facts here, the person who was the occupier and who had the requisite control was Mrs Harrington. But to return to Mr Charrington’s primary argument relating to the absence of proximity, the plaintiff is, in effect, asking me to extend the categories of persons who as occupiers owe a duty of care to others, without resort to any authority to that effect. As Lord Esher MR noted in Le Lievre v. Gould [1893] 1 QB 491 at 497, in an oft quoted statement “a man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them”.
Taking up the statements of general principle of Deane J in Sutherland Shire Council v. Heyman to which Mr Burnett referred, a significant public policy issue would arise if by an extension of the law of negligence, real estate agents were required to conduct slip tests on driveways of all tenanted premises, so as to satisfy the duty of care owed to persons who may come onto the property at the behest of the occupier, I am not prepared to accede to Mr Burnett’s submission, and I hold that in the circumstances of this case, the second defendant owed no duty of care to the plaintiff.
As between the second and first defendants, it is conceded on behalf of Ray White that s.74 of the Trade Practices Act 1974 cannot be excluded. The duty on the agent to present the premises in a safe and habitable condition is of application to the tenant only, and it is a duty owed by the first defendant as principal in accordance with the reasoning of Judge Samios in Clarke v. Banfield & Ors at p 11 of His Honour’s judgment. Mr Charrington concedes that if findings are made that the driveway constituted a dangerous defect and that this defect was the subject of a complaint by Mrs Harrington to Ray White, Ray White would be liable to indemnify Mr Green to the extent he is liable to the plaintiff.
Conclusions
Applying the law, as summarised earlier, to the facts as I have determined them to be, I conclude as follows:
1. Was there a dangerous defect in the driveway?
There is a paucity of evidence on this subject. Firstly, there is no persuasive evidence that the coating to the driveway administered by Mr Maynard was a substance that increased the slipperiness of the centre brick area. The plaintiff noted Mr Maynard painting the driveway, and he did refer to it on one occasion as a polyurethane type substance, but there is no evidence to satisfy me that whatever it was (which I cannot determine) it caused the driveway to become dangerously slippery when wet. The plaintiff’s evidence of seeing Mr Maynard painting it every month or so over a period of years and walking on it and never slipping is relevant to this issue. The plaintiff on at least one occasion when the Maynard’s lived in the premises, walked across the driveway and did not slip. It is really only the evidence of Mrs Harrington which, if accepted, would establish that the driveway was slippery and constituted a danger to entrants. For the reasons stated, I am not prepared to act on the evidence.
2. The first defendant did owe a duty of care to the plaintiff in the circumstances here but it was a delegable duty, which he has discharged by contracting with Ray White. In any event the duty owed is much narrower than the duty owed to the tenant.
3. The first defendant did not know, nor in the circumstances of his contractual relationship with Ray White, ought he have known, of any dangerous defect in the driveway.
4. At no time prior to the 24th May 1999 was Ray White aware, and there were no circumstances whereby it ought to have been aware, that the driveway was dangerous when wet. When it did find out, it acted reasonably to rectify the defect by having the driveway cleaned/acid washed on that same day.
5. Mrs Harrington owed a duty of care to the plaintiff as occupier and “controller” of the premises to warn him of dangers. It is not necessary for me to make any findings against her, because she is only a party as against the first defendant, and Mr Matthews on behalf of Mr Green seeks no orders against her.
The plaintiff’s claim must fail.
Assessment of damages
(a) Pain and suffering, loss of amenities
On the uncontested medical evidence the plaintiff has suffered an injury to the rotator cuff in his right shoulder which has left him with a 15% permanent partial disability of that limb. He suffered severe pain and inconvenience for the two months leading up to surgery, for a month or so afterwards and subsiding over the next eight months. He can’t now play tennis which he enjoyed previously. I assess general damages at $25,000 and I will award interest at 2% on $20,000.
(b) Past economic loss
The only claim is for substitute wages paid to the son for 12 months after the accident. I accept the plaintiff’s evidence that he paid the son on average $130 per week in cash, for the son to do the heavy lifting in the business. The plaintiff conducts a bin cleaning business, which involves physically lifting wheelie bins (after being emptied) into a device on his truck and then cleaning them with an industrial gurney. For the first two months (before surgery) the plaintiff continued to lift the bins using only his left hand, but after surgery the son would do the heavy lifting. There are a number of facts which would cause me to reject the plaintiff’s claim under this head on the probabilities. Firstly, in cross-examination by Mr Matthews, the plaintiff characterised these payments as “pocket money”, and he kept no documentary records of the payments. More importantly, he volunteered that his son lived with his wife and he was obliged to pay maintenance, but that during this period when the son helped him out, he was not required to pay maintenance by agreement with his ex-wife. For these reasons I cannot be satisfied to the requisite standard that the plaintiff has suffered loss under this head.
(c) Future economic loss
The plaintiff’s evidence is that after 12 months he was able to carry out all the necessary physical tasks associated with his business. I accept Dr Ho’s evidence that work activities involving sustained activities above the shoulder and heavy lifting and jobs requiring pulling repetitively are not recommended. The difficulty in awarding any sum under this head is in the evidence of the plaintiff. His evidence is that he is quite able to carry out his duties; and again it is not possible for me to find on the probabilities that he will suffer any economic loss in the future.
(d) Griffiths v. Kerkemeyer
I assess damages under this head on the basis of the plaintiff’s evidence, and Mr Burnett’s written submission at $3,300. I will allow interest expressed globally at $500.
(e) Specials
Specials are agreed at $6,264.15, and as the plaintiff has paid these out of his own pocket he should have interest (on Mr Burnett’s calculation which I accept) at $1,357.24.
Costs
Mr Charrington for the second defendant seeks costs on an indemnity basis as from the date of an offer to settle made on behalf of both defendants on the 17th July 2002. The offer was to settle on an “all up” basis of $50,000 to the plaintiff. The express wording of r.361 UCPR seems to militate against such an order. Rule 361(3)(b) provides expressly for circumstances in which a defendant, having satisfied the requirements of r.361(1), is then entitled to indemnity costs. This is not the case here. Mr Charrington relies on a passage in the judgment of Shepherdson J in Naomi Marble and Granite Pty Ltd v. FAI General Insurance Company Limited (No. 2) [1999] 1 Qd R 518 at 525-527. It should be noted immediately that this case did not concern an application for indemnity costs (or solicitor and own client costs as they were then known) under r.361 UCPR. The judgment turns on other issues including an offer to settle known as a Calderbank letter: Calderbank v. Calderbank [1975] 3 WLR 586. The case did concern circumstances in which defendants had been entirely successful against the plaintiff. The relevant rule then was O.26 r.9 Supreme Court Rules, which was in similar terms to the rule of court considered by Rolfe J in Multicon Engineering Pty Ltd v. Federal Airports Corporation (1996) 138 ALR 318. In Naomi Marble, Shepherdson quoted with approval a lengthy passage from the judgment of Rolfe J at page 433 of that judgment, and Mr Charrington relies upon this analysis in the sense that r.361 still does not provide for the situation in which a defendant is wholly successful against a plaintiff. Shepherdson J adopted Rolfe J’s reasoning in holding (under the now repealed O.26 r.9) that, in the exercise of discretion, the wholly successful defendant should be placed in a similar position, as the successful plaintiff (to which the relevant rule concerning indemnity costs to be awarded to a successful plaintiff applied). I think the answer to Mr Charrington’s submission can be found in a passage in Rolfe J’s judgment in Multicon Engineering, quoted in italics at page 526 of the Naomi Marble judgment:
“It seems to me anomalous that there is no provision whereby a defendant, which is totally successful, is placed in the same position as a plaintiff, which is totally successful. In my view the Rules should be reviewed.” (my emphasis)
Since Naomi Marble, in Queensland the rules of Court have been substantially reviewed and on this issue, r.361 is the result. In the absence of any express provision in the rules, I do not think it would be a proper exercise of discretion to infer into UCPR a power which is not expressly provided for. Of course, the defendants could have been made the same offer on day one of the trial, although r.361(4) would prevent them, even then, from taking advantage of r.361(3)(b).
Orders
The orders of the Court are:
1. Judgment for both the defendants against the plaintiff.
2. The first defendant’s claim for indemnity and contribution against the second defendant/first third party is dismissed.
3. The first defendant to pay the second defendant/first third party’s costs of the third party proceedings to be assessed on the standard basis.
4. The plaintiff to pay the second defendant’s costs of and incidental to the claim, including any reserved costs, to be assessed on the standard basis.
5. The plaintiff to pay the first defendant’s costs of and incidental to the claim, including any reserved costs, and including the costs that the first defendant has been ordered to pay to the second defendant, third party, to be assessed on the standard basis.
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