Permanent Trustee Australia Ltd v Valeondis - [2009] SASC 375

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
PERMANENT TRUSTEE AUSTRALIA LTD & ORS v VALEONDIS & ORS
[2009] SASC 375
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Layton)
4 December 2009
TORTS - NEGLIGENCE - LIABILITY FOR OTHERS' NEGLIGENCE - INDEPENDENT CONTRACTORS
Appeal against judgment that one of three possible building owners was liable in negligence to first respondent - first respondent suffered injuries when the roof of a lift collapsed - fourth appellant was managing agent for building - whether managing agent was independent contractor - consideration of relationship between building owner and managing agent - whether building owner vicariously liable for negligence of managing agent.

TORTS - NEGLIGENCE - DANGEROUS PREMISES - INJURIES TO PERSONS ENTERING PREMISES - WHO IS LIABLE
Whether the lifts constituted "premises" for the purposes of the Wrongs Act 1936 (SA) s 17C - whether lifts severable from the rest of the building.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Whether managing agent was negligent - whether Judge erred in making various findings of fact and in drawing inferences from primary facts.
Whether liability should be reduced on account of contributory negligence - whether Judge erred in findings of fact.
Appeal by first to third appellants allowed (by majority, Layton J dissenting) - building owner not vicariously liable for acts or omissions of managing agent - appeal by managing agent dismissed - appeal fails on all other grounds.
Wrongs Act 1936 (SA) s 17B, s 17C, s 17D, referred to.
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, applied.
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41, distinguished.
AFA Airconditioning Pty Ltd v Mendrecki (2008) 101 SASR 381; Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143; Scott v Davis (2001) 204 CLR 333; Emmanuel v Commissioner of Stamps (1986) 41 SASR 122; Voulis v Kozary (1975) 180 CLR 177, discussed.
Kondis v State Transport Authority (1984) 154 CLR 672; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Hewitt v Bonvin [1940] 1 KB 188; Ormrod v Crossville Motor Services Ltd [1953] 1 WLR 409; [1953] 1 WLR 1120; Soblusky v Egan (1960) 103 CLR 215; Jones v Bartlett (2000) 205 CLR 166; Luxton v Vines (1952) 85 CLR 352; Council of the City of Liverpool v Turano [2008] NSWCA 270; Nathan v Dollars & Sense Ltd [2008] 2 NZLR 557; Bazley v Curry [1999] 2 SCR 534; Jacobi v Griffiths [1999] 2 SCR 570; Lister v Hesley Hall Ltd [2002] 1 AC 215; Dubai Aluminium Co Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 375
Decision Date: 4 December 2009

CaseChat Overview and Summary

The appeal in Permanent Trustee Australia Ltd v Valeondis involves a claim by Periklis Valeondis against various defendants, including three corporate entities that may have been the owners of the building at the time of the incident. The plaintiff suffered injuries when the roof of a goods lift in the building collapsed. The defendants, including Permanent Trustee Australia Ltd, CFS Managed Property Ltd, and Perpetual Nominees Ltd, as well as Colliers International (SA) Pty Ltd, which acted as the building's managing agent, appealed against the judgment of the District Court which found them liable for the plaintiff's injuries. The central legal issue in this case was whether the building owners could be held vicariously liable for the negligence of Colliers International, the managing agent, who was considered an independent contractor. The court had to determine the nature of the relationship between the building owners and Colliers International, and whether the owners could be held responsible for the managing agent's actions.

The court found that the relationship between the building owners and Colliers International was not one where the managing agent acted on behalf of the owners to the extent that the owners would be vicariously liable for Colliers' negligence. Colliers was considered an independent contractor, and therefore, the building owners could not be held responsible for its actions. The Court of Appeal allowed the appeals by Permanent Trustee Australia Ltd, CFS Managed Property Ltd, and Perpetual Nominees Ltd, and dismissed the appeal by Colliers International (SA) Pty Ltd. This decision underscores the importance of the distinction between an independent contractor and an agent when considering vicarious liability in negligence cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J

This was not a relationship in which Colliers stood in the shoes of the building owners such that the building owners were vicariously liable for the acts and omissions of Colliers. Colliers acted as an independent contractor. Conclusion I would allow the appeal of Permanent Trustee Australia Ltd, CMS Managed Property Ltd and Perpetual Nominees Ltd. I would dismiss the appeal of Colliers International (SA) Pty Ltd.LAYTON J: This is an appeal against a judgment of a District Court Judge (“the Judge”) awarding damages in relation to a negligence action for personal injury. The claim related to injury suffered by the then plaintiff, now first respondent, Periklis Valeondis (“the plaintiff”) as a result of an accident that occurred in the goods lift of 45 Pirie Street, Adelaide (“the building”). The plaintiff initiated the action against seven defendants, the first three being corporate entities, one of whom, although it was not clear which, was the owner of the building at the relevant time. The matter of ownership was not decided at trial and remains an issue for later decision. The other defendants were the building manager and the principals of a company that had recently conducted maintenance on the lift ceiling. More specifically, the parties were: ·Permanent Trustee Australia Limited, (“Permanent Trustee”), the first appellant, (previously the first defendant) one of the three possible owners of the building at the relevant time; ·CFS Managed Property Limited, (“CFS”) the second appellant (previously the second defendant) another of the three possible owners of the building at the relevant time;·Perpetual Nominees Limited (“Perpetual”), the third appellant (previously the third defendant) another of the three possible owners of the building at the relevant time;·Colliers International (SA) Pty Ltd (“Colliers”), the fourth appellant (previously the fourth defendant) who was the managing agent for the building where the accident occurred at the relevant time; ·Periklis Valeondis, the first respondent (previously the plaintiff) who was a courier driver for TNT Couriers; and·Kennedy Consolidated Pty Ltd, Paul David Kennedy and Simone Leslie Kennedy, the second, third and fourth respondents respectively (formerly the fifth, sixth and seventh defendants respectively) were carrying on a business as Kennedy Property Services (“Kennedy”) which was retained as a contractor to do monthly reports on the state of the building and to attend to maintenance as required. Judgment was entered in favour of the plaintiff on 31 October 2008 against the first to fourth defendants and damages were awarded in the sum of $437,233.50. The Judge found that negligence was not made out against the fifth to seventh defendants. Contribution Notices as between the fourth and fifth defendants and the fifth and fourth defendants were also dismissed. The unsuccessful defendants, namely the first to fourth appellants, appealed to this court. As Kennedy was not found negligent and there was no appeal, Kennedy did not make submissions on the appeal.Introduction

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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