Miller v Le Fevre

[1987] TASSC 99

Serial No B29/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Miller v Le Fevre [1987] TASSC 99; B29/1987

PARTIES:  MILLER, Clifton Leigh
  MILLER, Christine Anne
  v
  LE FEVRE, Vernon McKenzie

FILE NO/S:  723/1985
DELIVERED ON:  23 June 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B29/1987
Number of paragraphs:  38

Serial No B29/1987
List "B"
File No 723/1985

CLIFTON LEIGH MILLER AND CHRISTINE ANNE MILLER
v VERNON McKENZIE LE FEVRE

REASONS FOR JUDGMENT  UNDERWOOD J

23 June 1987

1. This is an action for damages for negligence and/or breach of statutory duty.

1. In 1976, the defendant, in partnership with three others, went into the business of "spec–building", viz, the design and construction of houses on land owned by the partnership for sale on the open market during or after completion.

1. The defendant had no building skills. His role in the business was described by him as being entrepreneurial. The partnership employed an experienced builder, Mr Dwyer, on a weekly basis. The second house built by the partnership was No 3 Riverview Road, Riverside near Launceston. The defendant and his partners engaged a qualified architect to draw a plan and write an "outline specification" for this proposed dwelling. Before work began the plan and specification was submitted to and approved by the local authority. The house was constructed by Mr Dwyer and completed during the first half of 1977. On the 30 June 1977 it was sold to a Mr and Mrs Filshie, who lived in it until October 1980 when it was sold to the plaintiffs.

1. The house, of brick and timber construction, was built on a sloping block of land, It commanded excellent views of the Tamar River and was said by the male plaintiff to be above the "fog line". The living area of the house was on a single level. Taking advantage of the fall of the land, garage space was provided underneath the eastern end of this living area. An outdoor decked area adjoined the living area on the northern side. Forming part of the construction of the house this decked space commenced at ground level and extended along the northern wall of the house to its eastern most end. It was in part, of cantilever construction and at one end, was built over the entrances to the garage. It was used partly as an outdoor passage way providing access to a main entrance and partly for outdoor living.

1. The decking was constructed of dressed hardwood battens measuring 65mm x 20 mm, and spaced about three eighths of an inch apart. These battens were nailed to joists which, over part of the length of the decked area, ran through the wall of the house to form the joists for the living room floor. The railings of the decked area were also constructed of hardwood.

1. I accept the male plaintiff's evidence that he carefully examined the decked area when he inspected the house shortly prior to purchase. He noted that it appeared to have been freshly painted and was free from any sign of rot. On testing the stability of the floor of the lounge room he noticed a small amount of springing but considered it to be of no significance.

1. After living in the house for about a year the male plaintiff repainted the decked area. At that time he noticed that a few of the nails in the decking had worked loose and needed punching down.

1. A year later, the male plaintiff again painted the decking. On this occasion he noted that a larger number of nails had worked loose and there were signs of wood rot around some of these loose nails and at the ends of some of the hardwood battens. About this time the plaintiff also noticed an increase in the movement of the lounge room floor. The passage of people along the outside decking could be felt by someone standing on the lounge room floor. Towards the end of 1983, being something in the order of 6½ years after construction, the condition of the decked area had deteriorated markedly. Wood rot was evident, more nails had worked loose and some of the hardwood battens had become warped. A number of the loose nails would not stay in place when hammered down.

1. By the end of 1983, the plaintiffs decided that further maintenance of the decked area was a waste of money as it was so badly affected by wood rot. In mid 1984 they engaged the services of Mr Widdowson, a building consultant. He observed that the decking and some of the joists underneath were badly affected by wood rot. He was of the opinion that the whole of the decked area had to be removed and rebuilt, either in wood or concrete. In mid 1986 the plaintiffs had the decked areas pulled down and a new one built in concrete. This new area was considerably larger than the original construction. The concrete floor was supported from underneath by piers, and the railings were made of cast iron. At the time it was built it cost a total of $6,525.00 and by these proceedings, the plaintiffs seek to recover this sum and Mr Widdowson's consultancy fees from the defendant.

1. As there was no contractual relationship between the parties, the plaintiffs' claim depends upon the establishment of tortious liability either by way of breach of statutory duty or negligence, or both.

1. By paragraphs 4 and 5 of the Statement of Claim it was alleged that, in five respects, the house had not been constructed in accordance with the approved plan and specification. It was pleaded that these five matters, together with certain provisions of the Local Government Act 1962 and the Building Regulations, constituted both breaches of duty and negligence. In support of the latter cause of action a further particular was pleaded, namely, a failure "to build the house in such a way as to prevent decay in the external timbers". However, no evidence, other than that relating to the alleged five departures from the plan and specification, was adduced in support of this plea. These departures were pleaded in paragraph 4 of the Statement of Claim as follows:

"4        THE plans and specifications provided (inter alia) as follows:–

(a)That the floor joists of the house be of 240mm x 45mm seasoned hardwood;

(b)That the balcony decking of the house be of tantalised (sic) pine;

(c)That the railing to the balcony of the house be of 50mm seasoned hardwood;

(d)That the finish to the balcony of the house be two coats of Walpamur External Timber Stain; and

(e)That the floor joists be in accordance with the timber framing code."

1. The breaches alleged by paragraph 5 of the Statement of Claim were as follows:

"5        IN breach of the aforesaid provisions of the plans and specifications:

(a)The floor joists used in the house were 180mm x 50mm green hardwood;

(b)The decking of the balcony of the house was constructed of 65mm x 20mm dressed hardwood batons (sic);

(c)The railing to the balcony of the house was 45mm x 30mm and 72mm by 25mm dressed hardwood;

(d)The finish specified as set forth above was not applied; and

(e)The floor joists of the house were not in accordance with the Timber Framing Code which provided for a maximum cantilever of 1100mm whereas in fact the cantilever as constructed was 1800mm."

1. I shall first deal with the evidence in relation to each of the above matters of complaint.

(a)       The Floor Joists of the House

1. The evidence was confined to the floor joists supporting the outside decking and adjoining lounge room. The specification provided:

"Joists        90 x 45 at 450 centres generally.

240 x 45 to cantilevered deck at 450 centres scarf jointed and double bolted to 100 x 38 joists.

140 x 45 to cantilevered landing.

Bolt to top flanges of beams with 9mm ms bolts over 150 x 100 x 5 ms plates.

140 x 45 Jack rafters to cantilevered bay."

1. Seasoned hardwood was not specified as claimed by paragraph 4(a) of the Statement of Claim. No evidence was given to explain the contents of the specification set forth above. Mr Widdowson said, and I accept, that the joists under the decked area were unseasoned hardwood and measured 180mm x 50mm. Although the size of the joists was less than the specified size, there was no evidence that the reduced size had been productive of any loss or damage. Mr Dwyer said that dry wood is stronger than green timber but the latter was always used for floor joists and other timber frames. There is nothing in the evidence which could lead to the conclusion that in 1977 the use of green timber for floor joists was negligent.

(b)       Tanalised Pine Decking

1. The decking was built from hardwood battens. The specification provided:

"Externally to Deck & Ramp

75 x 25 Tanalised pine boards spaced 9mm double nailed to each joist."

1. With respect to the decking I am satisfied that there was a departure from the specification. I will return to the legal effect of this departure later in these reasons.

(c)       The Railing to the Balcony

1. The specification provided:

"BALUSTRADES (STAIRS, DECK & BRIDGE)

Frame up 75 x 75 posts at 450 centres with 75 x 50 top and bottom rails. Infill with 25 x 25 hardwood balusters at 125 centres.

Cap posts with 25mm thick weathered hardwood plates."

1. Mr Widdowson's evidence was that all the rails were made of dressed hardwood. The bottom rails measured 45mm x 30mm and the top rail, 72mm x 25mm. Accordingly, the plaintiff has established that there was a departure from the specification with respect to the size of the timber used but again, there is no evidence that this departure was of any significance or that it caused or contributed to any of the claimed loss or damage.

(d)       The Finish

1. The specification provided:

"TIMBER INCLUDING WINDOWS, SHINGLES AND DECKS

Apply 2 coats Walpamur Ranch Finish Stain preservative."

1. There is no evidence that the above specification was not complied with.

(e)       The Joists be in Accordance with the Timber Framing Code

1. The specification makes no reference to any Timber Framing Code. Mr Widdowson said that the spacing between the joists under the decking where it was cantilevered, was not in accordance with the Timber Framers' Guide. He produced the document. However, the document produced was not printed until after the house was built and has no relevance to these proceedings. There is a reference, in that part of the specification dealing with joists to "450 centres" but any departure from the specification in this respect was neither pleaded nor relied upon by the plaintiffs. In any event, there was no evidence that the spacing of the joists was productive of any of the claimed loss or damage.

1. Thus, the only relevant matter of fact which the plaintiffs have established is that hardwood battens were used for the floor of the exterior decked area and not tanalised pine as specified.

1. I accept the evidence of Mr Ralph, a civil engineer experienced in the timber industry, that wood rots when it is wet. The rot is caused by the presence of fungal micro–organisms, the life of which is dependent upon the presence of a sufficiently high moisture content in wood. He said that if the moisture content is in excess of 20% the fungi will flourish. Thus, wooden decking, where rainwater tends to pond, is susceptible to rot.  Keeping timber well coated with paint will prevent or at least, inhibit this process. Soft wood such as pine, can be impregnated with a substance which gives the wood a greenish hue and operates to prevent or retard fungal growth and therefore, the rotting process. "Tanalised" is a trade name for this process. In 1977, when the decked area was constructed, tanalised pine was a relatively new product in the Launceston area. It had apparently only been in production for about 3 years. I am satisfied that the decked area had to be removed and replaced because it was badly rotted. I am further satisfied that if tanalised pine had been used for the decking this rot would not have occurred. Mr Dwyer said that the change in materials was a result of a conscious decision made by him in consultation with the defendant. He said that at the time the house was built, tanalised pine was a new product and had not been in use for a sufficient length of time to test the accuracy of the manufacturer's claims that it was rot proof. He had read the literature about this process but, in his experience, literature of this sort "made rather extravagant claims". He said, and I accept, that he had always used hardwood battens for exterior decking prior to the production of tanalised pine and because, in 1977, "he knew the life of one and not the other", he decided it was safer to use the material with which he was familiar. There is no evidence, nor any evidence from which an inference could be drawn that use of hardwood battens and not the relatively new tanalised pine was negligent at the time the decked area was built. I accept the evidence of Mr Dwyer that hardwood battens had been used for exterior decking for many years. There was no suggestion that such use was not in accordance with then good building practice.

1. That leaves a remaining question as to whether the proved departure from the specification in relation to the use of tanalised pine, constituted a breach of statutory duty. This aspect of the plaintiff's claim was put on two bases:–

"1Breach of statutory duty imposed by s429A(1) of the Local Government Act 1962 and the Building Regulations made under that Act numbered 8, 9, 19, 149 and 173.

2Breach of statutory duty imposed by s429A(2) of the Local Government Act 1962."

Section 429A(1) and the Building Regulations

1. Section 429A(1) imposes a duty upon a person erecting a building to do so in compliance with, and conformity to, the Building Regulations "so far as they are applicable". The relevant regulations are the Building Regulations 1965 (as amended to 1977). Regulations 8 and 9 prohibit building without Council approval. Regulation 19 is of a general nature, requiring the erection of a building to be in accordance with the regulations. Regulation 149(1) provides that "all materials shall be of good quality" and subreg(2) deems material to be of good quality if it complies with certain standards. Regulation 173 provides:

"All structural timber used in any building shall be good, sound timber free from rot, large or loose knots, shakes, or any imperfection by which it may be weakened, and shall be of such dimensions as the purposes for which the building designed require."

1. There is no evidence of any breach of any of the above regulations.

Section 429A(2)

1. This subsection, inserted by Act No 66 of 1971, s7 provides:

"A person when carrying out the erection or alteration of a building or structure in regard to which plans or specifications have been approved under the Building Regulations shall do so strictly in accordance with those plans or specifications."

1. The initial question for resolution is whether a breach of this subsection creates a cause of action in tort at the suit of the plaintiffs. The tort of breach of statutory duty is quite distinct from the tort of negligence. Referring to this distinction in East Suffolk Rivers Catchment Board v Kent [1941] AC 74 Lord Atkin said at p88:

"On the first point (was there a duty owed to the plaintiffs and, if so, what was its nature?) I cannot help thinking that the argument did not sufficiently distinguish between two kinds of duties: (1) A statutory duty to do or abstain from doing something. (2) A common law duty to conduct yourself with reasonable care so as not to injure persons liable to be affected by your conduct.

"(1)     The duty imposed by statute is primarily a duty owed to the State. Occasionally penalties are imposed by the statute for breach; and, speaking generally, in the absence of special sanctions imposed by the statute the breach of duty amounts to a common law misdemeanour. The duty is not necessarily a duty owed to a private citizen. The duty may, however, be imposed for the protection of particular citizens or class of citizens, in which case a person of the protected class can sue for injury to him due to the breach."

In The London Passenger Transport Board v Upson [1949] AC 135 Lord Wright said at p168:

"I think the authorities such as Caswell's case [1940] AC 152. Lewis v Denye [1940] AC 921 and Spark's case [1943] KB 223 show clearly that a claim for damages for breach of a statutory duty intended to protect a person in the position of the particular plaintiff is a specific common law right which is not to be confused in essence with a claim for negligence. The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff, his right to the performance by the defendant of the defendant's statutory duty. It is an effective sanction. It is not a claim in negligence in the strict or ordinary sense;"

1. With respect to the approach to this question of statutory interpretation I refer to Sovar v Henry Lane Pty Ltd (1967) 41 ALJR 129, per Kitto J at p132:

"But at the outset of every inquiry in this field, it is important , in my opinion, to recognise, notwithstanding the views expressed by some writers (see Mr G M Fricke's article 76 Law Quarterly Review 240), that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre–existing state of the law, and generally the whole range of circumstances relevant upon a question of statutory interpretation."

See also, Darling Island Stevedoring and Lighterage Co Ltd v Long (1956) 97 CLR 36, per Williams J at p49:

"The question in each case, whether the duty is created by a statute or by a regulation made under the authority of a statute, is whether the duty appears to be created for the individual benefit of all such persons as can bring themselves within its scope or only for the benefit of the State and is of such a kind that the injury likely to be sustained by such individuals from its breach is of such a character that it could be made the subject matter of an action for damages at common law."

See also Riddell v Reid [1943] AC 1; Knapp v Railway Executive [1949] 2 All ER 508.

1. Section 429A(2) is not primarily designed to protect matters of health or safety as is the case with statutes which prescribe safety standards in the work place. For example, see Groves v Wimborne [1898] 2 QB 402; Caswell v Powell Duffryn Colliery Co (supra).

1. Sections 821 and 829 of the Local Government Act operate to make a breach of s429A(2) an offence and render the offender liable to the imposition of a pecuniary penalty. Section 829A fixes a time limit for the institution of a prosecution for a breach of the subsection. Provision for a sanction is not determinative of the matter but absence of such provision tends to favour the view that a breach of the statute will give rise to an action for damages. See Cutler v Wandsworth Stadium Ltd [1949] 1 All ER 544; Ministry[i] of Housing and Local Government v Sharp [1970] 2 QB 223.

1. It is necessary to "consider the scope and purpose of (the subsection) and in particular for whose benefit it is intended": Black v Fyfe Coal Co Ltd [1912] AC 149 at p165. Section 429A(2) appears in Part XVI, Division 1 of the Local Government Act 1962. In general terms, the provisions of this Division are designed to give local authorities wide control over the erection of all types of buildings within their municipalities, from residences to multi–use, high rise buildings.

1. Section 425 empowers the making of building regulations "for the control of building". These regulations prescribe in great detail, the standards to be complied with in the construction of all types of buildings. Principally, the regulations are concerned with the health and safety of the future occupants of the buildings under construction. The provisions of Division 1 delegate to a local authority the power to divide its municipality into building areas and thus, through the medium of the Building Regulations, control the classes of construction of buildings throughout the municipality. Sections 432 and 433 impose controls upon the siting of buildings on allotments. Section 451 enables a local authority to attach a wide range of conditions to a building approval. Section 446 gives a Council power to stop all work on a building being erected in contravention of (inter alia) s429A(2). The Building Regulations are authority for the issue of notices of irregularity if construction is not in accordance (inter alia) with an approved specification.

1. A survey of the provisions of Division 1 disclose the existence of a legislative intent to give a local authority almost total control over building activity within its municipality. Such control is necessary not only to preserve the health and safety of the occupants of the building but also to promote and enhance the social and aesthetic interests of the inhabitants of the municipality generally.

1. Section 429A(2) is part of the system of control. It imposes a duty on a builder to build in accordance with the approval given by the local authority. Without this subsection, the requirement to submit and obtain approval of plans and specifications before the commencement of work would be nugatory.

1. Unlike the Building Regulations, the subsection does not itself specify any standards which must be complied with; that is left to the draughtsman of the plans and specifications. The documentation may be sparse or detailed. It may include such matters as the brand of fittings to be installed in kitchens and bathrooms and the finish to be applied to interior walls; matters which are of no real concern to the municipality. Enforcement of the duty imposed by s429A(2) is a matter for the discretion of the council and its officers. The purpose of s429A(2) is to ensure that what is approved is built in so far as a council considers it appropriate to enforce the matter. It is inconceivable that Parliament intended to vest in persons, including those such as the plaintiff, who had no interest in the specification when it was approved by the local authority, a cause of action for breach of this statutory duty.

1. I conclude that the plaintiff has no cause of action for a breach of the statutory duty imposed by s429A(2) of the Local Government Act and as there is no evidence of a breach of any other statutory duty or negligence by the defendant, the plaintiffs' claim fails. There will be judgment for the defendant.

tasInLaw edit: The judgment has "Ministery".

Press Esc to close or Back on your Browser