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 v Salaam [2003] 2 AC 366, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Agent", "independent contractor", "vicarious liability", "premises"

PERMANENT TRUSTEE AUSTRALIA LTD & ORS v VALEONDIS & ORS
[2009] SASC 375
Full Court: Bleby, Gray and Layton JJ
BLEBY J.
Introduction

The facts and circumstances giving rise to this appeal are adequately set forth in the reasons for judgment of Layton J. I will not repeat them save where necessary for the purpose of these reasons. In the light of the conclusions of Layton J, there is one topic I need to address, and that is the issue of the vicarious liability of the building owner.
The fourth defendant and fourth appellant, Colliers International (SA) Pty Ltd (“Colliers”), was the Managing Agent for the owner of the building in which the plaintiff’s accident occurred. Its role and function were set out in a detailed management agreement dated 1 February 1998.
By cl 2.1 of the agreement:
The Owner appoints the Managing Agent as the Owner’s agent to provide the services as the managing agent of the Property and for the purpose of managing, operating, promoting, maintaining and administering the Property in accordance with this Agreement including, without limitation, the terms and conditions contained in Schedule 2.
Clause 5.1 required that the Managing Agent “must do all acts necessary for the proper and efficient management, operation, promotion, maintenance and administration of the Property”.
Schedule 2 contained a comprehensive list of the duties of the Managing Agent which included the collection and recording of rent, the payment of all operating costs, the enforcement of all leases, licences, contracts and other arrangements and the engagement, employment and supervision of all contractors, consultants and on-site staff necessary for the performance by the Managing Agent of its obligations under the agreement. The expression “on-site staff” was defined as meaning “all persons temporarily or permanently employed or otherwise engaged by the Managing Agent in relation to the performance by the Managing Agent of its obligations under this Agreement who are employed substantially to work in and about the Property”.
The Schedule also required that the Managing Agent administer all engagement and employment contracts and arrangements, that it regularly inspect the property and arrange for the property to be maintained, serviced, cleaned and repaired and that it deal promptly and reasonably with all complaints and correspondence relating to the property. It also obliged the Managing Agent to use reasonable endeavours to perform all of the owner’s obligations under all leases and licenses within the time provided for performance and to use its best endeavours to ensure that all premises within the property are properly fitted out, presented and maintained by the occupants in accordance with their respective leases and licenses. Subject to the approval of the owner, it was required to establish and maintain maintenance contracts and maintenance records and to be responsible for the administration of all contracts. If required by the owner, it was to make recommendations in relation to new lettings, assignments of leases, sub-leases, options for further terms and rent reviews. The Managing Agent was required to oversee all tenancy fit-out works and alterations including enforcement of “making good” reinstatement provisions at the expiration of each tenancy.
This is not a complete list of the Managing Agent’s duties and responsibilities. It is enough to give some idea of the extent of its involvement in managing the property. Significantly, there was no provision for detailed control by the owner of any of those activities. Rather, the contract provided for the Managing Agent to undertake all relevant management activities, to supervise staff and administer contracts involved and to deliver to the owner detailed monthly reports both financial and operational, including as to plant and equipment failures.
The issue on appeal
The amended notice of appeal alleged that the trial Judge failed to apply s 17D of the then Wrongs Act 1936 (SA) limiting the liability of a landlord not in occupation of premises. However, that ground was abandoned at the hearing of the appeal. The liability of the defendants was therefore to be determined in accordance with s 17C of the Wrongs Act 1936 as it applied at the time. I will return to a consideration of the relevant statutory provisions later in these reasons.
The Judge’s findings
Concerning the relationship between Colliers and the building owner, the trial Judge said:
It was submitted on behalf of the building owners that Colliers were independent contractors and as such the owners were not liable for the acts of Colliers. The plaintiff submitted that the principal-agent relationship was established.
The question to be answered is whether an agency–principal relationship has been established rather than simply whether Colliers were “independent contractors”.
The contract between Colliers and the owners demonstrates that Colliers were the agent of the owners, not an independent contractor. Clause 2.1 and the preamble to Schedule 2 of the agreement demonstrate that the intention was to create a principal and agent relationship. The obligations of Colliers indicate the work to be performed on behalf of the owners. The contract when looked at in total demonstrates the control exercised by the owners.
The acts of Colliers and in particular Mr Armstrong, in relation to the way he dealt with the lifts, were acts within the scope of the agency.
Later in his judgment, when summarising his conclusions, the Judge said:
I have already found that Colliers were the agent for the building owner and that the acts or omissions of Mr Armstrong were acts or omissions done within the course of his agency.
The owner is liable as principal for the act of its agent Colliers. …
The relevant statutory provisions
For present purposes the only relevant part of s 17C of the Wrongs Act is subsection (1):
Occupier’s duty of care
(1)Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
For the purpose of this section, “occupier” of premises is defined as meaning “a person in occupation or control of the premises, and includes a landlord.[1] “Premises” is defined as meaning:[2]
(a)land; or
(b)a building or structure (including a moveable building or structure); or
(c)a vehicle (including an aircraft or a ship, boat or vessel).
[1] Wrongs Act 1936 (SA) s 17B.
[2] Wrongs Act 1936 (SA) s 17B.
It was argued that as “premises” is defined in a unitary way, it does not extend to part of a building, and that neither the landlord nor Collier’s could be said to be in occupation or control of “the premises”, as this would necessarily include those parts of the building in exclusive occupation or control of tenants.
I reject that argument. It assumes that all premises as defined can only have one occupier besides the landlord. This does not reflect practical reality. It would mean that the lessee of part of a building could never be an occupier of the premises for the purpose of s 17C(1) and could never be liable for damage or loss attributable to the dangerous state or condition of the premises for which the lessee might be responsible. The legislation must be construed sensibly so as to apply to premises occupied by multiple tenants.
It follows that, in this case, the common areas of the building, including the lifts, were “premises” for the purpose of s 17C.
There can be no doubt, and it was not seriously argued, that Colliers, in its capacity as managing agent, if not in occupation of the premises, was certainly in control of the premises. Through the management agreement it was exercising control on behalf of the landlord. Both Colliers and the owner, as landlord, therefore fell within the statutory definition of “occupier” for the purposes of s 17C.
It follows that in respect of the common areas of the building, the liability of both the owner and Colliers is governed by s 17C of the Act. Their liability is to be determined in accordance with the principles of the law of negligence, which includes common law principles relating to vicarious liability for tortious acts.
The relevant principles of vicarious liability
The nature of the duty of care of a building owner to persons lawfully on the premises but who are not employees of the owner was discussed extensively by Layton J, with whom Duggan J and I agreed, in AFA Airconditioning Pty Ltd v Mendrecki.[3] As appears from her Honour’s analysis of the authorities, what is relevantly required in order to impose a non-delegable duty of care on a building owner is some special dependence or vulnerability of the plaintiff such that there is a necessary relationship of proximity which would give rise to such a duty. There was no such relationship in this case.
[3] [2008] SASC 195, [128]-[136], (2008) 101 SASR 381, 414-417.
The duty of care owed by the landlord or building owner was to take reasonable care for the safety of persons entering the premises, or to avoid the risk of harm to the plaintiff.[4] That duty of care could be and was discharged by engaging a competent building manager to undertake the duty.
[4] Kondis v State Transport Authority (1984) 154 CLR 672, 679-680.
A non-delegable duty of care may also arise in a situation in which the performance of the task or manner of its performance carries with it “an inherent and high risk of harm to others”.[5] No such non-delegable duty arose in this case.
[5] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199, [42]. See also AFA Airconditioning Pty Ltd v Mendrecki [2008] SASC 195, [137]-[141], (2008) 101 SASR 381, 417-418.
It follows that liability on the building owner in this case could only arise by virtue of its vicarious liability for the acts and omissions of Colliers or its employees.
The general rule, often stated, is that a person is not vicariously liable for the tortious acts or omissions of an independent contractor.[6] The independent contractor may use an article at another’s request or may, as in this case, be in control of a building at the owner’s request and for the owner’s purposes, but the owner will not be liable for the contractor’s negligence.[7]
[6] See, for example Scott v Davis [2000] HCA 52, (2001) 204 CLR 333 [181], 342 Gleeson CJ, [301], 436 Hayne J. See also Hollis v Vabu Pty Ltd [2001] HCA 44, [32], (2001) 207 CLR 21. The principle was not departed from by the majority in that case. The principle was restated and applied in Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19, (2006) 226 CLR 161.
[7] Scott v Davis [2000] HCA 52, [18], (2001) 204 CLR 333, 342.
In some cases, the owner of a motor vehicle has been held to be liable for the negligence of the owner’s bailee-driver.[8] However, at least in this country, such liability would now appear to be limited to the use of motor vehicles and to situations where the owner has the immediate power to direct and control the driver.[9]
[8] See for example Hewitt v Bonvin [1940] 1 KB 188; Ormrod v Crossville Motor Services Ltd [1953] 1 WLR 409; [1953] 1 All ER 711, [1953] 1 WLR 1120, [1953] 2 All ER 753.
[9] See Soblusky v Egan (1960) 103 CLR 215, as explained in Scott v Davis [2000] HCA 52, (2001) 204 CLR 333, [12]-[14], 340-341 Gleeson CJ, [124]-[132], [251]-[257], 373-378, 418-420 Gummow J, [283]-[284], [311], 425-427, 440 Hayne J, [356]-[357], 458-459 Callinan J.
In this case the trial Judge fell into the error of assuming that, just because Collier’s could be properly described as the owner’s “agent”, it was vicariously liable. It is clear that to describe the relationship in that manner does not establish vicarious liability.
In Sweeney v Boylan Nominees Pty Ltd[10] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, in their joint judgment said:[11]
[I]t is necessary always to recall that much more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person's actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second. But there is an important, albeit distracting, consequence that follows from the observation that the first person seeks to gain benefit or advantage from engaging the second to perform a task. It is that the relationship is one which invites the application of terms like "representative", "delegate" or "agent". The use of those or other similar expressions must not be permitted to obscure the need to examine what exactly are the relationships between the various actors.
…
The point to be made is more than linguistic. What is revealed is that like "agent", the word "representative" and its cognate forms are used in many different senses. It is necessary to distinguish between the different meanings. Saying that B did what he or she did as the "representative" of A does not reveal, without definition of what is meant, what was the relationship between the parties.
[10] [2006] HCA 19, (2006) 226 CLR 161.
[11] Ibid [13], [16], 167, 168.
The majority reaffirmed the High Court’s traditional approach to vicarious liability for tortious acts:[12]
But the wider proposition that underpinned the argument of the appellant in this case, that if A "represents" B, B is vicariously liable for the conduct of A, is a proposition of such generality that it goes well beyond the bounds set by notions of control (with old, and now imperfect analogies of servitude) or set by notions of course of employment.
These bounds should not now be redrawn in the manner asserted by the appellant. Hitherto the distinction between independent contractors and employees has been critical to the definition of the ambit of vicarious liability. The view, sometimes expressed [37] , that the distinction should be abandoned in favour of a wider principle, has not commanded the assent of a majority of this Court.
…
Whatever may be the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted to be pulled out.
[12] Ibid [26]-[27], [33], 171-172, 173.
By asking the question whether the agent-principal relationship was established, the trial Judge asked the wrong question. To hold (as he did) that “Colliers were the agent of the owner, not an independent contractor” was to suggest that those terms were mutually exclusive, when they are not.
Colliers was clearly an independent contractor to whom management of the building and its facilities were delegated. Control of all relevant functions had been effectively delegated under the management agreement to Colliers. No relevant control was retained by the owner. Some contracts may have required the approval of the owner, but the administration of all contracts was delegated to Colliers. The fact that Colliers had an extensive reporting obligation as to contracts entered into and as to moneys handled on behalf of the owners does not mean that the owners retained sufficiently detailed control over the actions of Colliers to attract vicarious liability for the acts of Colliers.
This was not a situation akin to that in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd[13] where the appellant was held liable for the slanderous statements of a canvasser for proposals for life insurance (an independent contractor) uttered in the course of his attempting to induce persons to make life insurance proposals. He made the statements acting in right of the appellant and with its authority. He was held to be acting in right of the company and not in an independent capacity, in execution of his authority to canvass for offers to contract with his principal. This latter point was regarded as an important point of distinction by the High Court in Sweeney v Boylan Nominees Pty Ltd.[14]
[13] (1931) 46 CLR 41.
[14] [2006] HCA 19, (2006) 226 CLR 161. See especially [21]-[24], 170-171.

Colliers was vicariously liable for the acts or omissions of its employees. However, the building owner was not vicariously liable for the acts or omissions of its independent contractor, Colliers.
It follows that I would allow the appeal for the purpose of setting aside the judgment against the first, second and third defendants.
Other grounds of appeal
In relation to all other grounds of appeal I agree with the conclusions of Layton J and generally with her reasons. I would therefore dismiss the appeal by Colliers.
GRAY J.
In proceedings in the District Court, Periklis Valeondis sued Permanent Trustee Australia Ltd, CMS Managed Property Ltd, Perpetual Nominees Ltd and Colliers International (SA) Pty Ltd claiming damages for injuries sustained as a result of a lift ceiling that collapsed.[15]
[15] Three further parties were joined as defendants. The claims against those parties were dismissed and they took no part in the within appeal proceedings.
Mr Valeondis worked as a courier driver. On 22 August 2000 he attended at level two, 45 Pirie Street Adelaide, to collect a parcel. Having collected the parcel, he travelled to the ground floor of the building using the service lift. As the lift travelled between level two and the ground level, the ceiling of the lift collapsed, causing personal injury to Mr Valeondis.
Mr Valeondis alleged that Permanent Trustee Australia, CMS Managed Property and Perpetual Nominees, were liable as owners of the building. At trial, it was accepted that these defendants were to be treated collectively as the owners of the building. The trial Judge recorded this concession in his judgment in the following terms:[16]
There was uncertainty at the trial as to who actually owned the building as at 22 August 2000. It was not disputed that it was one of the first three defendants.
It was submitted by [counsel for the first three defendants] that the issue could not be resolved between the first three defendants; if I was to find liability (not conceded) against the owner of the building, I should enter judgment against all three defendants and that issue would be resolved at a later time. In other words I was not to differentiate between the first three defendants.
Whilst that is an unusual course to adopt I will adopt the practical suggestion of [counsel]. For the sake of brevity I will refer to the first thee defendants as the “first defendant”.
In these reasons, I have treated the three entities collectively as the “building owners”.
[16] Valeondis v Permanent Trustee Aust Ltd & Ors [2008] SADC 143 at [136] – [138].
The building owners as landlords owed Mr Valeondis a duty of care. However it was said that they discharged their duty of care by the engagement of an appropriate qualified independent contractor and accordingly had not acted in breach of this duty of care. Mr Valeondis contended that Colliers acted as the agent of the building owners and that the owners were vicariously liable for the acts and omissions of Colliers. Colliers was sued in its capacity as the building manager and as an occupier of 45 Pirie Street within the meaning of section 17C of the Wrongs Act 1936 (SA).
The trial Judge concluded that Colliers had acted negligently in regard to the management of the service lift and that Mr Valeondis was entitled to recover damages in respect of his injuries. The Judge further concluded that the building owners were liable as a consequence of their principal and agency relationship with Colliers. The critical findings of the trial Judge on the question of the building owners’ liability were as follows: [17]
[17] Valeondis v Permanent Trustee Aust Ltd & Ors [2008] SADC 143 at [64] –[67], [128], [147]-[148].
It was submitted on behalf of the building owners that Colliers were independent contractors and as such the owners were not liable for the acts of Colliers. The plaintiff submitted that the principal-agent relationship was established.
The question to be answered is whether an agency–principal relationship has been established rather than simply whether Colliers were “independent contractors”.
The contract between Colliers and the owners demonstrates that Colliers were the agent of the owners, not an independent contractor. Clause 2.1 and the preamble to Schedule 2 of the agreement demonstrate that the intention was to create a principal and agent relationship. The obligations of Colliers indicate the work to be performed on behalf of the owners. The contract when looked at in total demonstrates the control exercised by the owners.
The acts of Colliers and in particular Mr Armstrong [of Colliers], in relation to the way he dealt with the lifts, were acts within the scope of the agency.
…
Colliers were the agent for the building owners. They had the responsibility of “managing, operating, promoting, maintaining and administering the property”. Their obligations in that regard are set out in the Management Agreement. As building manager it had the responsibility to provide and enforce a safe system for the use of the bank of lifts including the goods lift. They exercised some control in relation to the goods lift by having in place a system whereby a contractor wanting sole use of the goods lift had to obtain a key and sign a register. There was in place a system of regular inspections of the bank of lifts (and many other areas of the building) and subsequent reports to the building owners. That they had in place a system of control of the goods lift ceiling is evidenced by the General Conditions of Approval for Building Works. It was a condition of approval of building works within a tenancy that the “ceiling in the Goods lift may only be removed and reinstalled by Otis Elevators or by consultation with the building Services Manager and the Project Manger concerned”. I accept the evidence of Mr Humphreys that the system of control that Colliers had in place was reasonable.
…
I have already found that Colliers were the agent for the building owner and that the acts or omissions of Mr Armstrong were acts or omissions done within the course of his agency.
The owner is liable as principal for the act of its agent Colliers. I will hear argument as how such a judgement should be recorded given the uncertainty as to which of the first three defendants was the legal owner at the time of the accident.
A review of the reasons of the trial Judge as set out above suggests that vicarious liability followed from his view that the relationship between the building owners and Colliers was that of principal and agent. However, it is relevant to note that there is no reference in the Judge’s reasons for judgment to any authority on the question of agency and vicarious liability, and in particular, no discussion of High Court authority, including Sweeney v Boylan Nominees Pty Ltd.[18]
[18] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
The building owners and Colliers contended on appeal that the trial Judge’s findings and conclusions were flawed in a number of respects. It was said that the findings about the circumstances of the incident could not be sustained and as a consequence the finding in negligence should be set aside. It was contended that the Judge had erred in concluding that the building owners were liable as a consequence of the principal and agent relationship. It was argued that the relationship was one of building owner and independent contractor and that in the circumstances, vicarious liability did not arise. It was further contended that if a finding of negligence was to be sustained, there should have been a finding that Mr Valeondis was guilty of contributory negligence. Finally, it was contended that section 17C of the Wrongs Act had no application, as the lift did not form a part of the premises within the meaning of the statute.
Layton J has set out the background facts and circumstances in her reasons for judgment. I respectfully adopt her summary and treatment of those facts and circumstances. I will only refer to those matters where necessary for the understanding of my reasons. I agree with the conclusions and reasons of Layton J with respect to her rejection of the challenge to the Judge’s findings of negligence on the part of Colliers. I also agree with her Honour’s reasons for rejecting the complaint that there should have been a finding of contributory negligence. Further, I agree with the reasons of Bleby and Layton JJ that the lift the subject of the incident formed part of the premises within the meaning of section 17C of the Wrongs Act.
Layton J in her reasons has subjected the agreement between the building owners and Colliers to close analysis. I agree with her conclusion that the agreement gave rise to a principal and agency relationship. However, this does not conclude the issue on this appeal. As Dixon J relevantly observed in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd:[19]
Some of the difficulties of the subject arise from the many senses in which the word “agent” is employed. “No word is more commonly and constantly abused than the word ‘agent’. A person may be spoken of as an ‘agent’ and no doubt in the popular sense of the word may properly be said to be an ‘agent’, although when it is attempted to suggest that he is an ‘agent’ under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading” (per Lord Herschell in Kennedy v De Trafford). Unfortunately, too, the expressions “for,” “on behalf of,” “for the benefit of” and even “authorise” are often used in relation to services which, although done for the advantage of a person who requests them, involve no representation.
[19] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at [19].
These observations were approved by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Sweeney v Boylan Nominees Pty Ltd.[20] The Court also observed:[21]
The point to be made is more than linguistic. What is revealed is that like “agent”, the word “representative” and its cognate forms are used in many different senses. It is necessary to distinguish between the different meanings. Saying that B did what he or she did as the “representative” of A does not reveal, without definition of what is meant, what was the relationship between the parties.
[20] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
[21] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [16].
In the present proceeding, the building owners were the occupiers of the premises within the meaning of section 17C of the Wrongs Act which provides:
Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
“Occupier” of premises is defined as meaning “a person in occupation or control of the premises and includes a landlord”. In the present proceeding, the building owners were landlords and accordingly it follows that the liability of the building owners would be determined in accordance with the principles of the law of negligence.
In Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd, an insurance company was found vicariously liable for slanders made by the insurance salesman whilst soliciting business. Gavan Duffy CJ and Starke J reasoned: [22]
Nothing in the agreement or the position of the parties denied the right of the plaintiff to control and direct Ridley when, where and whom he should canvass. In our opinion the judgment of the Judicial Committee in Citizens' Life Assurance Co. v. Brown really concludes the present case. But if it does not, still we apprehend that one is liable for another's tortious act "if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority." It is not necessary that the particular act should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of (Barwick v. English Joint Stock Bank; Lloyd v. Grace Smith & Co.). And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it. (Cf. Limpus v. London General Omnibus Co.) The class of acts which Ridley was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorized to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by Ridley in the course of his canvass, though contrary to its direction.
[22] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 46-47.
Dixon J enunciated the principle more narrowly and in particular observed:[23]
If the view be right which I have already expressed, that the "agent" represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion.
The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons.
I do not think a distinction can be maintained between breaches of duty towards third persons with whom the agent is authorized to deal and breaches of duty towards strangers, committed in exercising that authority. If what he does is done as the representative of his principal, it cannot matter, apart from questions of estoppel and of apparent as opposed to real authority, whether the injury which it inflicts is a wrong to one rather than another person.
[23] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 50.
There has been considerable debate in the authorities about the proper approach to be taken to vicarious liability in tort and the significance of the relationship of principal and agent.[24] The topic has been the subject of extensive academic debate.[25] However, the High Court has resolved the approach to be taken in Australia in its decision in Sweeney v Boylan Nominees Pty Ltd.[26]
[24] See eg Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Scott v Davis (2000) 204 CLR 333; Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
[25] Examples include Dal Pont, ‘Agency: Definitional challenges through the law of tort’ (2003) 11 Torts Law Journal 1; Foster, ‘Vicarious liability for independent contractors revisited: Sweeney v Boylan Nominees Pty Ltd, (2006) 14 Torts Law Journal 219; Rolph, ‘A Carton of Milk, A Bump to the Head and One Legal Headache: Vicarious Liability in the High Court of Australia’, (2006) 19 Australian Journal of Labour Law 294; McCarthy, ‘Vicarious Liability in the Agency Context’ [2004] Queensland University of Technology Law &Justice Journal 18; Burnett, ‘Avoiding Difficult questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees’ (2007) 29 Sydney Law Review 163.
[26] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161. It is instructive to note that other jurisdictions have taken an alternative approach to that of the High Court of Australia: see eg New Zealand, Nathan v Dollars & Sense Ltd [2008] 2 NZLR 557, Canada, Bazley v Curry [1999] 2 SCR 534 and Jacobi v Griffiths [1999] 2 SCR 570, England, Lister v Hesley Hall Ltd [2002] 1 AC 215 and Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366.
Sweeney[27] concerned a plaintiff who had been injured as a result of a falling refrigerator door at a service station. A mechanic, engaged by the owners to perform repairs, failed to exercise reasonable care in that repair. The issue in the case was whether the service station owner was vicariously liable for the negligence of the mechanic. The Court analysed the nature of the relationship between the service station owner and the mechanic. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ reached the conclusion that the mechanic was acting as an independent contractor and that the service station owner, in the circumstances, bore no tortious liability. Their Honours recognised that liability might arise in a case of principal and agent, but only in the case of an agent properly so-called, and determined that it was critical to reach a conclusion about the true nature of the relationship.
[27] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ accorded Colonial Mutual Life a narrow operation through their approval of the Dixon J analysis:[28]
…In Colonial Mutual Life the person, for whose statements the appellant was sought to be made vicariously liable, had been engaged by the appellant to canvass for proposals for life insurance. The statements which it was alleged that he made, and which were slanderous of the respondent company, had been uttered in the course of his attempting to induce persons to make proposals for life insurance by the appellant. He was not a servant of the appellant company. Yet it was held that the appellant was vicariously liable for his statements because he made them in acting as the company's agent.
In soliciting proposals, the person who made the slanderous statements was acting in right of the company and with its authority. He had express authority to canvass for the making of contractual offers to his principal. Although he had no authority from his principal to accept any offers that were made, "the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorised him on its behalf to address to prospective proponents such observations as appeared to him appropriate". "[T]he very service to be performed consist[ed] in standing in [the principal's] place and assuming to act in [its] right and not in an independent capacity" (emphasis added) in a transaction with others. He acted in right of the principal, and not in an independent capacity, because he acted in execution of his authority to canvass for offers to contract with his principal.
…
Colonial Mutual Life establishes that if an independent contractor is engaged to solicit the bringing about of legal relations between the principal who engages the contractor and third parties, the principal will be held liable for slanders uttered to persuade the third party to make an agreement with the principal. It is a conclusion that depends directly upon the identification of the independent contractor as the principal's agent (properly so called) and the recognition that the conduct of which complaint is made was conduct undertaken in the course of, and for the purpose of, executing that agency.
[emphasis added]
[28] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [17] - [18], [22].
In accordance with the above analysis, it is necessary in the present proceeding to ascertain whether Colliers was standing in the place of the building owners and assuming to act in their right, or whether Colliers acted in an independent capacity in transactions with others and as an independent contractor.

This analysis necessarily turns on the particular facts and circumstances of a given relationship. However, further assistance is to be gained by consideration of the observations of the High Court in Sweeney with respect to the earlier decision of Hollis v Vabu Pty Ltd.[29] In that respect, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ commented:[30]
It is as well to add something further about Hollis. Hollis hinged about whether the person whose conduct was negligent was to be identified as an employee of the principal. Seven considerations were identified in the facts of that case as bearing upon the question. They included that the courier wore the principal's livery, that he was subject to close direction by the principal about not only the manner of performing the work (work which required only limited skills), but also both the financial dealings generated by the work and the times at which the work was done.
The circumstances of the present case are very different. The mechanic was not an employee of the respondent. He conducted his own business. It may be that it could be inferred that he did that through, and as an employee of, the company whose name provided the name advertised on his vehicle. But this was not a matter to which close attention was given in evidence at trial and it is not necessary to pursue it to its conclusion. That the mechanic was engaged in a business other than that of the respondent was demonstrated by a number of circumstances but chief among them were his invoicing the respondent for each job he did and the respondent's concern to verify that the mechanic had proper workers' compensation and public liability insurance. The interposition of the mechanic's company would, of course, give further support to the conclusion that he was engaged in a business other than that of the respondent.
The mechanic or, if it were the case, his company, was engaged from time to time as a contractor to perform maintenance work for the respondent. Unlike the principal in Hollis, the respondent did not control the way in which the mechanic worked. The mechanic supplied his own tools and equipment, as well as bringing his skills to bear upon the work that was to be done. And unlike the case in Hollis, the mechanic was not presented to the public as an emanation of the respondent. The two documents to which the trial judge, as mentioned earlier, attached great weight neither require nor support the conclusion that he was. Neither says anything of the nature of the relationship between the mechanic and the respondent beyond the fact that the mechanic was acting at the request of the respondent. As previously stated, that presents the question to be answered in this case, it does not answer it.
Whatever may be the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted to be pulled out. And without discarding at least the first and perhaps even the second, the appellant's claim against the respondent must fail. The mechanic was an independent contractor. He did what he did for the benefit of the respondent and in attempted discharge of its contractual obligations. But he did what he did not as an employee of the respondent but as a principal pursuing his own business or as an employee of his own company pursuing its business.
[Emphasis added]
[29] Hollis v Vabu Pty Ltd (2001) 207 CLR 21.
[30] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [30] – [33].
I now turn to address the nature of the relationship between the building owners and Colliers.
Forty-five Pirie Street is a substantial building in the heart of the central business district of Adelaide, with areas being let to different tenants. A manager from Colliers in evidence described the building as a “premium grade building” of 17 storeys with a basement car park below the building and plant rooms above. The building was fully tenanted at the time of the incident the subject of these proceedings. A bank of lifts, including a service lift, operated within the building to meet the needs of the tenants.
The agreement between the building owners and Colliers is described as “Management Agreement, 45 Pirie Street Adelaide”. The recitals to the agreement record that the managing agent carries on the business of providing management services. The agreement provides for the appointment of the managing agent in the following terms:
The Owner appoints the Managing Agent as the Owner’s agent to provide the services as the managing agent of the Property and for the purpose of managing, operating, promoting, maintaining and administering the Property in accordance with this Agreement including, without limitation, the terms and conditions contained in Schedule 2.
The duties of the managing agent were set out the agreement:
The Managing Agent must do all acts necessary for the proper and efficient management, operation, promotion, maintenance and administration of the Property.
The Managing Agent must comply with Office of Consumer & Business Affairs and all relevant Acts.
The Managing Agent shall reasonably undertake without any additional charge any reasonable request of the Owner or the fund manager, of a nature relevant to the property.
The second schedule to the agreement further addressed the duties of the managing agent. Those duties are described in detail under the headings “Estate Management”, “Operating Trust Account”, “Collection of Rental Income”, “Disbursement from Operating Trust Account” and “Reports, Budgets and Records”. The last heading was subjected to subheadings as follows: “Financial Reports”, “Monthly Reports”, “Budgets”, “Annual Report”, “Financial Statements”, “Records” and “Production of Records and Information”.
The duties extended to the overseeing of all tenancy fit-out works and alterations, including express obligations in regard to the liaising between occupants and consultants, contractors, builders and developers and other parties, with a view to ensuring a minimum of inconvenience to all concerned. Those duties further extended to the establishment and upkeep of maintenance contracts and maintenance records and the provision of monthly written reports in respect of maintenance.
The management agreement was expressed to be for a period of four years and six months. However in the event that the owner elected to perform the management of the property itself, the owner was required to provide three months notice in writing to the managing agent.
The third schedule to the management agreement inter alia addressed indemnities and provided as follows:
In consideration of the Managing Agent agreeing to carry out to the best of its ability the powers duties and obligations imposed on the Managing Agent under this Agreement the Owner shall at all times during the Term:
indemnify the Managing Agent from and against any actions claim or proceeding in respect of any injury, loss or damage to any property real or personal for which the Manager in the course of properly performing its duties hereunder shall or may be or become legally liable pursuant to the terms of this Agreement provided always that this indemnity shall not apply to any negligent act or omission or misconduct of the Manager or any of its employees or agents;
The Managing Agent indemnifies the Owner against any liability, loss, claim or proceeding in respect of any injury, loss or damage to any property real or personal that may arise as a result of the misconduct or negligence of or a breach of this Agreement by the Managing Agents, its employees or agents.
Insurances
The Managing Agent shall effect and keep in existence a professional indemnity insurance policy during the continuance of the Agreement.
Royston Alec Humphreys, a principal of a property consultancy management and agency service gave expert evidence in the trial. He had worked in the property industry for more than 25 years and for 15 years of that period with Colliers. He had held the position with Colliers as its National and Regional Director for Property and Facilities Management. His tendered curriculum vitae attested to his depth of experience in regard to property management. Mr Humphreys was a professional member of the Facilities Management Association and held with that body the positions of State Chairperson and National Board Member. In his written statement, tendered as part of his evidence, he expressed the following views as to the role of a property manager:
Building Management Structure
Whilst a managing agent is appointed to act on behalf of an owner, the more sophisticated managing agent would deploy a team of resources to fulfil the management agreement, particularly in respect to more significant property assets (in value and size)
These resources would generally consist of an asset/property manager, building services manager, trust accounting and support. Nomenclature will vary from managing agent to managing agent.
The property manager has the primary responsibility for the delivery of services under the management agreement. The role is all encompassing including the management of occupants, leases, finances and physical (maintenance) management. The building services manager has day to day supervision and control of the building maintenance including the delivery of services through appointed contractors and their sub contractors.
Building services managers are generally trades qualified personnel with a broad knowledge of building matters. They are not expected to undertake “hands on” skilled tasks but to deploy appropriately qualified and insured contractors. This should include a contractor selection process and a control process to ensure work quality, value for money, responsiveness and the retention of appropriate levels of insurance.
The building services manager’s role further includes controlling the access and activities of contractors appointed by the managing agent (on behalf of their client), cleanliness, work in a tradesperson like manner and ultimately, authorise the expenditure for payment
…
Inspections and Management
…
Part of the managing agent’s role is to maintain the physical appearance and condition of the property. Within the public areas such as car parks, foyers and lifts, it is essential that the property presents in a clean and well maintained manner. It is impracticable to have constant vigilance by the managing agent, which is often located off-site, at all times and therefore various additional mechanisms are deployed.
The monitoring of common areas and collection advice of matters requiring attention includes:-
Reliance on building occupants to note and refer matters of concern to the managing agent. This usually occurs when obvious and/or major occurrences are observed.
Building contractors and in particular the cleaning contractor relay advice on obvious maintenance items. In major buildings, cleaning activities occur on a nightly basis and areas such as the foyer, ground common areas, car parks etc., cleaning occurs in the mornings and evenings. Major maintenance and/or security breaches are usually relayed to the managing agent by telephone whereas less urgent matters are relayed through the use of a “communication book”.
Informal property inspections by the managing agent personnel, including the property manager and building services manager. This occurs whenever managing personnel pass or enter the building, as they should always be observant of obvious items requiring attention.
Formal building inspections. This is a formal process including the preparation of an inspection report. The frequency is governed by the management agreement. In absence of any agreement to the contrary, this should be conducted on at least on a monthly basis.
The contracted lift contractor would inspect the lift installation of [sic] a regular basis. It is noted within the OTIS Comprehensive Lift Maintenance Contract that, weekly inspections of the lift installation is required. Whilst OTIS is not required to maintain lift car finishes, it would be incumbent upon OTIS to inspect and report any matters of concern.
Whilst there is reliance on all of these mechanisms, without 24 hour monitoring there is always the possibility of building occupants or contractors deliberately causing damage or undertaking unsafe practices. It is not commercially or practically feasible to have total control over the activities of such people.
I have reviewed the Management Agreement between Permanent Trustee Australia Limited (Owner) and Colliers Jardine (SA) Pty Limited (Managing Agent) dated 1 February 1998. This Agreement was for a term of 4 years and 6 months, unless it is terminated earlier.
It is noted that the managing agent’s duties include “procure the engagement employment and supervision of all contractors, consultants and on-site staff necessary for the performance by the Managing Agent of its obligations under this Agreement”. Further, there is a standard requirement to “regularly inspect the property and arrange for the property to be maintained serviced, cleaned and repaired”. There is no prescriptive requirement for the frequency or form of inspections.
Considering the nature of the building and the monthly reporting requirements “including the requirement on a monthly basis to provide a statement of any emergencies and events of an extraordinary nature that could involve a risk insured against the owner”, formal monthly inspections would be deemed as the minimum.
…
[footnotes omitted]
In the present proceeding, Colliers acted as a commercial property manager. Colliers’ business included a substantial property management portfolio. Colliers was a contractor, offering a “sophisticated” management service. Colliers was not subject to close direction by the building owners with respect to the manner in which it performed its duties. Colliers had, through the management agreement, extensive management duties and responsibilities at 45 Pirie Street on behalf of the building owners. A number of its duties involved expertise that might be expected to be beyond the building owners’ capacity to perform. Colliers did not receive directions as to how or when it performed its tasks. Colliers was not an employee of the building owners; it conducted its own business, under its own name and through its own employees. The building owners did not control the way in which Colliers performed its duties. Colliers provided its own facilities and equipment. Colliers was not presented to the public as an emanation of the building owners. There was no suggestion of employees of Colliers wearing the building owners’ uniform or being otherwise identifiable as part of the building owners’ business.
Unsurprisingly, Colliers was under obligations to provide detailed reports, particularly on financial matters, to the building owners. One might expect the building owners to be well informed about their property. Although the building owners could direct, and in that sense exercise some control, there was little evidence that they did so. Colliers undertook duties for the benefit of the building owners, and in a number of respects, in an attempted discharge of the building owners’ legal obligations. However, when it did so, it acted as a principal pursuing its own business, not as an entity standing in the shoes of the building owners. Close attention was not paid to these matters at the trial. However the above conclusions may be safely drawn from the unchallenged evidence.
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
The accident occurred on 22 August 2000. Prior to the accident, the plaintiff had worked for TNT Couriers as a courier driver for many years. On that day the plaintiff attended at AAP Communications Services Pty Ltd, which is located on Level 2 of the building, to collect a parcel. Having collected the parcel, he entered the goods lift in order to reach the ground floor of the building. As the goods lift travelled between the second level and the ground level, the ceiling of the goods lift collapsed on him and injured him. A major issue at trial concerned whether the whole of the ceiling of the lift had fallen on the plaintiff or whether it was a portion of the ceiling. It was also a major issue whether the plaintiff had either caused or contributed to its fall. The Judge found that the whole of the ceiling fell on the plaintiff and that his actions did not contribute to the fall.
The first three defendants were sued as being the owners of the building at the relevant time. As the identification of the particular owner of the building at the time still remains an issue to be determined, in these reasons, a reference to the “owner” is a reference to the first three defendants. The Judge found that a relationship of agency existed between the owner, as principal, and Colliers, as agent. His Honour reasoned that if Colliers were negligent, then the owner, whoever that may have been, would also be negligent by reason of the agency relationship.[31]
[31] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [147]-[148].

Kennedy was sued on the basis that it had incompetently carried out repairs and maintenance to the ceiling of the goods lift, as instructed by Colliers. Kennedy conducted repairs to the lift on two occasions, the second occasion being 17 August 2000 only five days prior to the injury. The Judge found that on the second occasion, Kennedy, through its employee, Mr Adamson, had correctly reinstated the ceiling as instructed and had left the ceiling assembly stable and sound. Accordingly, the Judge found that Kennedy was not in breach of any standard of care.
The fourth defendant Colliers was sued as being the managing agent of the building pursuant to a management agreement with the owner “the Management Agreement”). The Judge found that the applicable standard of care was that contained in s 17C of the Wrongs Act 1936 (SA) (‘the Wrongs Act’).[32] The Judge found that somewhere in between the time of the completion of Kennedy’s work and the time of the accident, the ceiling was replaced or interfered with by an unknown person, most likely one of the building contractors working on major building works at the time of the plaintiff’s injury. The Judge found that this unknown person removed the ceiling and then replaced it, but had not done so properly and that it was left in a precarious state.[33] Alternatively, reasoned the Judge, the unknown person had interfered with the hangar and clips of the ceiling of the lift. In either case, the ceiling was left in such a precarious state that a minor vertical shudder upon descent of the lift could cause the ceiling to come down in its entirety, and that this was the cause of the plaintiff’s injury.
[32] The Wrongs Act has since been re-named the Civil Liability Act 1936, but the earlier Wrongs Act still applies to this case.
[33] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [126].
The Judge found that Colliers breached its duty of care by failing to ensure that when building contractors used the lift and disturbed the ceiling, the ceiling was replaced by a person competent to do so. In the alternative, the Judge found that Colliers was negligent in that, given the building works being undertaken at the time, Colliers should have arranged to have the ceiling of the lift removed for the period of the building works.[34]
[34] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [144]-[146].
The Judge concluded that because Colliers was negligent the owner was also negligent by reason of the relationship of agency between Colliers and the owner.
The Judge rejected the argument that the plaintiff was guilty of any contributory negligence.
Grounds of appeal
The appellants argued four major grounds of appeal against the decision of the Judge.
The first ground of appeal was that the Judge erred in finding that the owner was liable for the negligent breach of duty said to have been committed by Colliers. Instead, it was submitted that the Judge should have found that Colliers was an independent contractor and that no vicarious liability could therefore be attached to the owner.
Secondly, it was contended that the Judge erred in finding that Colliers was negligent. It was argued that the Judge had erred in a number of factual findings and inferences which he had drawn from the evidence, and which were contrary to the evidence and/or the weight of the evidence. The challenges to the facts included a challenge to the findings of the Judge as to: the position of the ceiling tiles in the lift when the plaintiff first entered; how and why the lift ceiling fell on the plaintiff; and whether major works were being undertaken in the building at the time when the plaintiff was injured.
Thirdly, it was contended that if the owners were found to be liable in negligence, then the plaintiff should be found to have been guilty of contributory negligence because the parcel he was carrying had struck the ceiling tiles and resulted in the injury to him.
A fourth ground was initially contended, namely, that the Judge erred in finding the owner negligent using s 17C of the Wrongs Act, rather than s 17D of that Act, however this was not pursued on appeal. Instead, the appellants contended that s 17C did not apply because the word “premises” did not include the lifts.
Agency – vicarious liability
All four appellants were represented by one counsel. He commenced his argument on this ground by asserting that the Judge had wrongly approached liability as being that of “vicarious liability” of the owner for the acts of Colliers as agent. Counsel referred to [7], [64] and [66] of the judgment to support this proposition. However, a reading of these paragraphs indicate that the Judge did not specifically advert to “vicarious liability”, but simply to “liability” of the owner as principal for the acts of the agent. The reference to “liability” only, as distinct from “vicarious liability”, was further used in [148] of his reasons. For reasons indicated hereafter, nothing turns on the reference by the Judge simply to a finding of “liability”, as that expression would include both “direct liability” and “vicarious liability”.
Counsel’s submission continued that the Judge, in answering the question as to whether the owner was vicariously liable, had posed the question wrongly. In particular, the question as posed was contrary to the majority reasoning of the High Court in Sweeney v Boylan Nominees Pty Ltd (“Sweeney”).[35]It was contended that on the authority of the majority in Sweeney it was “completely irrelevant and unhelpful” to consider whether or not there was an agency relationship; instead, it was submitted that the test was whether the relationship could be characterised as “one of employer and employee or equivalent thereto”. No amplification was given as to what counsel meant by the phrase “or equivalent thereto” or “tantamount to one of employer-employee”. Instead, his submission concentrated on the failure of the Judge to address the indicia relevant to deciding whether the relationship between the owner and Colliers was that of an employer and employee. It was submitted that the Management Agreement between the owner and Colliers did not demonstrate the necessary element of control of the kind identified in Hollis v Vabu Pty Ltd[36] (“Hollis”), as further discussed in Sweeney, and that this was contrary to the finding of the Judge that the Management Agreement “demonstrates the control exercised by the owners”.[37] Further, no such relationship of employer and employee was discussed or applied by the Judge and it could not be made out on the evidence, hence the first three defendants were not vicariously liable for any negligent act of Colliers.
[35] (2006) 226 CLR 161.
[36] (2001) 207 CLR 21.
[37] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [66].
The relevant passages the Judge’s findings on this point are as follows:[38]
[38] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [64]-[67], [128], [147]-[148].
64It was submitted on behalf of the building owners that Colliers were independent contractors and as such the owners were not liable for the acts of Colliers. The plaintiff submitted that the principal-agent relationship was established.
65The question to be answered is whether an agency–principal relationship has been established rather than simply whether Colliers were “independent contractors”.
66The contract between Colliers and the owners demonstrates that Colliers were the agent of the owners, not an independent contractor. Clause 2.1 and the preamble to Schedule 2 of the agreement demonstrate that the intention was to create a principal and agent relationship. The obligations of Colliers indicate the work to be performed on behalf of the owners. The contract when looked at in total demonstrates the control exercised by the owners.
67The acts of Colliers and in particular Mr Armstrong, in relation to the way he dealt with the lifts, were acts within the scope of the agency.
…
128Colliers were the agent for the building owners. They had the responsibility of “managing, operating, promoting, maintaining and administering the property”. Their obligations in that regard are set out in the Management Agreement. As building manager it had the responsibility to provide and enforce a safe system for the use of the bank of lifts including the goods lift.
…
147I have already found that Colliers were the agent for the building owner and that the acts or omissions of Mr Armstrong were acts or omissions done within the course of his agency.
148The owner is liable as principal for the act of its agent Colliers. I will hear argument as how such a judgement should be recorded given the uncertainty as to which of the first three defendants was the legal owner at the time of the accident.
[Footnotes omitted.]
These paragraphs indicate that the Judge found liability as a result of an arrangement of principal and agent.
The cases of Sweeney and Hollis involved vicarious liability arising from an alleged employer/employee relationship. The predominant argument in both cases was focused on the indicia, or factors, relevant to ascertaining whether a particular relationship was that of employer and employee, as distinct from the alleged employee being an independent contractor.
In the case of Sweeney, important observations were made as to the nature of vicarious liability and the manner in which it had historically developed.[39]
[39] Sweeney, 166 [11], 169-70 [20].
Counsel for the appellants specifically relied upon the observations of the Court that use of terms such as “agent”, “representative” or “delegate” should not be permitted to obscure the need to examine the nature of the relationship established.[40] In particular:[41]
The point to be made is more than linguistic. What is revealed is that like “agent”, the word “representative” and its cognate forms are used in many different senses. It is necessary to distinguish between the different meanings. Saying that B did what he or she did as the “representative” of A does not reveal, without definition of what is meant, what was the relationship between the parties.
[40] Sweeney, 167 [13].
[41] Sweeney, 168 [16].
These observations about the generality of the use of words such as “agent” and “representative” are not new.[42] The issue was earlier identified by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (“CML”),[43] as follows:[44]
Some of the difficulties of the subject arise from the many senses in which the word “agent” is employed. “No word is more commonly and constantly abused than the word ‘agent’. A person may be spoken of as an ‘agent’ and no doubt in the popular sense of the word may properly be said to be an ‘agent’, although when it is attempted to suggest that he is an ‘agent’ under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading” (per Lord Herschell in Kennedy v De Trafford (1897) AC 180 at 188). Unfortunately, too, the expressions “for,” “on behalf of,” “for the benefit of” and even “authorize” are often used in relation to services which, although done for the advantage of a person who requests them, involve no representation.
[42] Sweeney, 168 [17]. See also Scott v Davis (2000) 204 CLR 333, 422-423 [268] (Gummow J).
[43] (1931) 46 CLR 41, 50.
[44] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41, 50.
In order to address the argument of the appellants that the case of Sweeney results in the agency relationship being irrelevant, it is necessary to analyse the decision of Sweeney and the earlier decisions of CML and Scott v Davis, in more detail.
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd.
In CML, the principal company contracted a person (“the contractor” and the alleged employee) to solicit business for it in relation to insurance contracts. In the course of canvassing potential clients, the contractor made certain slanderous remarks about the plaintiff. The plaintiff sought to attach liability for the slander to the principal company by the vehicle of vicarious liability. The issue was whether a principal was vicariously liable for the wrongful acts of another. The High Court found that the contractor who had made the slanderous statements was not an employee of the principal, but an independent contractor. The High Court further found that, notwithstanding the absence of an employment relationship, the principal was nonetheless vicariously liable for the slander. The Court found that the principal had expressly authorised the contractor to canvas for offers and this was the context in which the slanderous utterance occurred. The circumstances in which the wrong had been committed were articulated by Dixon J to be that:[45]
[t]he wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons.
[45] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Co of Australia Ltd (1931) 46 CLR 41, 50.
This decision has been the subject of later discussion in the following cases.
Scott v Davis
In Scott v Davis,[46] a young boy was a passenger in a vintage aeroplane when the pilot lost control and the plane crashed killing the boy. The plane was owned by the owner of a country property at which a birthday party was being held. The owner, at the request of the boy’s mother, asked a guest at the party, who was a licensed pilot, to take the boy on a joy ride in one of his planes. The pilot agreed. The crash occurred as a result of the negligent flying of the pilot. The parents of the boy sued the owner claiming that he was vicariously liable for the pilot’s negligence. All five High Court judges gave separate reasons. The majority of four[47] found that the owner was not vicariously liable. McHugh J was in dissent.
[46] Scott v Davis (2000) 204 CLR 333.
[47] Gleeson CJ, Gummow, Hayne and Callinan JJ.
The major focus of the discussion by the majority was on vicarious liability of an owner of a chattel for the negligent use of the chattel (the plane) by a person to whom permission to use was granted by the owner and who was, in fact, requested by the owner to use. There was extensive reference to the case law concerning use of chattels in the so called “motor car cases”. The majority concluded that the pilot was not subject to the direction and control of the owner at the critical time, he was not an employee, representative, delegate or agent of the owner and that to find the owner vicariously liable in the circumstances, would be contrary to the general rule that that a person is not vicariously responsible for the negligence of an independent contractor.[48]
[48] Scott v Davis, 341-343 [16]-[21] (Gleeson CJ), 420-423 [258]-[272] (Gummow J), 440 [311] (Hayne J), 458-459 [355]-[358] (Callinan J).
The reasoning of Gummow J in particular canvassed not only the history of the motor car cases but also the doctrine of vicarious liability of an agent in tort. In relation to the latter, his Honour referred to views expressed by the authorities[49] about the decision in CML, the circumstances in which a principal could be found to be vicariously liable in tort for the actions of an agent and the circumstances in which an agent was genuinely acting in a representative capacity. His Honour concluded that there was a relationship between tort and agency but that the extent of that relationship remained a matter of debate.[50] His Honour also noted that the English cases appeared to: [51]
introduce a new type of agent, who is not an employee, nor an independent contractor; rather, it is “one whose job is not to make contracts but to do such favours as driving cars for his temporary principal”. It would seem that the term “agent” will cease to apply where the driver uses the car “for purposes of his own”, but otherwise is introduced here as a basis for extending the tort law doctrine of vicarious liability beyond its usual reach.
[citations omitted]
[49] Scott v Davis, 410 [231]-[233] (Gummow J), which included Professor Fleming, Dr Stallybrass as editor of Salmond on Tort and Professor Stoljar.
[50] Scott v Davis, 411 [233] (Gummow J).
[51] Scott v Davis, 412 [237] (Gummow J).
Gummow J continued by citing with approval a further authority,[52] in which there can be seen a more confined interpretation of the English cases. His Honour said:[53]
First, it should be clear that the law of agency does not come into play every time one person represents another. For example, no rules of agency apply when a husband sends his wife to a wedding to congratulate the newly-weds, for in such cases the representation only serves a social purpose. For the rules of agency to come into play the representation of one person by another must be meant to affect the principal's legal position though, of course, this does not mean that the legal purpose intended to be achieved by the use of an agent need be a complex one.
…
Secondly, for an agency relationship to arise, one person must intend to act on behalf of another. This is a question of fact. But, it is submitted, such an intention is not, in itself, enough; the purpose of the relationship must be for the agent to enter into a contract on behalf of his principal (or to dispose of his principal's property).
[52] Professor Markesinis and Dr Munday.
[53] Scott v Davis, 412-3 [238] (Gummow J).
Gummow J concluded on this point:[54]
The principle of "vicarious" liability does not rest upon "agency", in its proper sense, nor simply upon the employment relationship. … The former is part of the doctrine of agency; the latter is part of the doctrine of vicarious liability in an employment relationship. Neither has a part to play in the circumstances of this case.
[54] Scott v Davis, 413 [239] (Gummow J).
Gleeson CJ agreed with Gummow J in his conclusion that vicarious liability should not be further extended by holding a person liable simply because the actions were performed at that person’s request and for their purposes.[55] The Chief Justice also concluded that there was no adequate foundation for extension of the notion of agency to the circumstances of that case.
[55] Scott v Davis, 342 [18] (Gleeson CJ).
In relation to the facts, the majority judges observed in their various ways that all that the pilot did was render, on a social occasion, a voluntary service at the request of the respondent. The pilot was not a representative or delegate of the respondent.[56] As Gummow J expressed it, “to introduce notions of “agency” and “control” in the performance of social activities such as those involved here would be liable to chill ordinary social and familial intercourse”.[57]
[56] Scott v Davis, 342-343 [19]-[20] (Gleeson CJ).
[57] Scott v Davis, 423 [272] (Gummow J).
The points that I observe from the reasons of the majority in Scott v Davis, is that it was accepted that a principal could be viciously liable in tort for the actions of an agent, but they did not consider there was a basis for extending liability unless that negligent person was an employee, or alternatively acting as an independent contractor and “true agent” in the proper sense, and could thereby legally bind the principal. On the facts in that case, the features which demonstrated that the pilot was neither an employee nor a true agent were that there were no contractually agreed terms and the pilot was not subject to the direction and control of the owner in the management of the owner’s plane.
These points were further developed and reinforced in the case of Sweeney.
Sweeney v Boylan Nominees Pty Ltd

As authority for these submissions, the appellant first referred the Court to Cross on Evidence[92] which concisely states the principles as to the admissibility of statements against interest:[93]
The self-serving statements of the parties to litigation are usually inadmissible as evidence of their truth on account of the fear of fabrication to which reference has already been made, but statements adverse to the maker's case are received as proof of the truth of their contents in civil and criminal proceedings. … When disserving statements are made by a party to civil litigation, or, in a criminal case, by the accused to someone who is not in authority, they are said to be admissions and must be distinguished from formal admissions: [3165]–[3195]. Formal admissions bind the party by whom they were made, but the informal admissions about to be considered may always be contradicted or explained away by their maker, when it is for the tribunal of fact to determine the weight to be attached to them.
[emphasis added]
[92] Heydon, J D (Ed), Cross on Evidence (LexisNexis (Australia), Looseleaf Service).
[93] Heydon, J D (Ed), Cross on Evidence (LexisNexis (Australia), Looseleaf Service) [33420].
The appellant then referred to Voulis v Kozary (“Voulis”)[94] in which the High Court unanimously held that particular conduct on the part of the defendants in that case had amounted to an unequivocal out-of-court admission which had not been treated as such in the proceedings below. On this basis, the High Court overturned the primary judge’s ultimate finding notwithstanding the “special advantages which a judge at first instance must always possess over an appellate court on matters of fact”.[95] However, as will be shown, the character of the admission in Voulis was different to the so-called admission in the present case.
[94] (1975) 180 CLR 177.
[95] Voulis v Kozary (1975) 180 CLR 177, 190 (Gibbs and Stephen JJ).
Briefly, the facts of Voulis were that three men had agreed to purchase a six-dollar lottery ticket. The plaintiff made the purchase as agreed and wrote on the application form the names of the other two men (the defendants) as well as a mark which may have been the first letter of his name. The ticket won the first prize of $200,000. The three men publicly congratulated each other and appeared on a radio programme and publicized a gift to charity of $1000. The plaintiff and one defendant spoke to a bank manager about claiming the prize money and how it might be invested. The defendants subsequently denied that the plaintiff was entitled to a share in the prize on the basis that he had not paid his two dollars towards the price of the ticket. The plaintiff’s claim to share in the proceeds was dismissed by the Judge as well as by the majority in the New South Wales Court of Appeal.
On appeal to the High Court, McTiernan, Stephen, Jacobs and Murphy JJ held that the defendants’ conduct subsequent to winning the prize amounted to an admission that they intended to split the winnings three ways.
Jacobs J in his reasons noted that there was no plausible explanation given for the defendant’s conduct other than an admission. This, and the fact that the admission “went to the core” of the matter, became the basis for their Honours giving greater weight to the conduct than that which had been given in the earlier decisions below:[96]
[T]he statements and conduct of both [defendants] after the drawing of the lottery were unequivocal admissions that the plaintiff did have an interest, that the ticket was shared between the three of them. These admissions, made in the circumstances in which they were made, have an overwhelming persuasiveness unless they can be explained in some convincing way. The statements and conduct were not merely on incidental aspects of the matter. They went to the core. They were not in any way inadvertent or casual or extracted from them in circumstances which might lessen their weight. They were not made in response to questions which suggested the answers which were given. Admissions so made must be given very great probative value.
[96] Voulis v Kozary (1975) 180 CLR 177, 193.
In determining whether the same principle applies in the present case, it must be asked of the impugned statement: is it unequivocal; does it go to the core of the matter; can it be explained in a convincing way; and does its existence create a glaring improbability in the accepted story?
There is no question that the statement in the letter relates to a core finding of fact. It is uncontroversial that the question of how and why the ceiling fell down goes to the heart of liability. However, the statement can hardly be said to be unequivocal. By the very nature and purpose of the contentious letter, its content was inherently ambiguous. It was not a witness proof, but a letter written by the solicitor, Mr Gask for the purpose of giving notice of the impending claim and to identify broadly what Mr Valeondis had said. It is normal practice that such letters are drafted on the basis of very general instructions.
Furthermore, the evidence of Mr Gask which elaborated on the statement in the letter showed the statement could easily be construed as being consistent with the plaintiff’s evidence at trial rather than a statement against interest. As his Honour concludes:[97]
In relation to the statement in the letter “two panels of the ceiling together with some framework, collapsed,” Mr Gask confirmed that they were his instructions. He also confirmed that his instructions were that there were “panels on top of those panels”. That is consistent with the plaintiff’s evidence rather than inconsistent.
[97] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [42].
Far from being unsound, his Honour’s inference that all four panels fell down, when the two panels on top of two others fell down, is both logical and inescapable. The statement that some of the framework collapsed is not entirely inconsistent with the respondent’s later evidence that no framework remained in the ceiling following the incident. A description of what fell does not imply that some framework remained.
A more thorough analysis of how and why the ceiling fell down follows. However, even at this point, given the ambiguity engendered by the context in which the impugned statement was made and the equivocal nature of the statement itself, the claimed inconsistency between the statement and the plaintiff’s evidence at trial is easily and sufficiently “explained away”. Moreover, the statement hardly points to a glaring improbability in the story accepted by the Judge and accordingly, the statement cannot be a basis for disturbing a primary finding of fact on the authority of Voulis.
How and why the ceiling tiles and bars fell
The findings of the Judge which were asserted to be in error, in respect of how and why the whole ceiling fell on the plaintiff, are summarised in paragraphs [125] and [126].
The conclusion which the Judge reached was set out as follows:[98]
I find that the ceiling had been replaced or interfered with by an unknown person prior to 22 August 2000. I find that it was most likely to have been a contractor. I find that it had been removed and then replaced but not properly. The hanger had not been fixed and the primary bar was not over the clips or at least not properly over the clips. It had been left in a precarious state. It is likely that the front two tiles were not correctly in place particularly as the primary bar had not been placed over the clips. When two tiles had been removed the whole structure became unstable. As a result, both the primary and secondary bars had no support other than the bearing edge of the lift. The primary bar was not stable and the ceiling collapsed as described by Mr Valeondis. It was in such a precarious state that the minor vertical shudder, as mentioned by Mr Valeondis, was sufficient to cause all of the ceiling to come down.
[98] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [126].
The reasoning which led to this conclusion is summarised as follows:[99]
As mentioned I accept the evidence of Mr Valeondis when he said that everything in the ceiling had fallen down. When he looked there was nothing left of the ceiling. The expert evidence establishes that if the ceiling had been fitted properly, even if two of the tiles were not correctly in place, not all of the components of the ceiling should fall. The primary bar, unless hit from underneath with sufficient force, would be held by the clips. Even if hit with a force sufficient to lift it from the clips it would be still held by the “hanger”. I have already found that Mr Adamson had installed the ceiling correctly on 17 August when he had attended to fix and reinstate the ceiling. I find that Mr Valeondis, when manoeuvring the package into the lift, did not hit the primary bar with sufficient force to dislodge it from the clips.
[99] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [125].
The appellant submitted that these findings and inferences were “pure speculation or conjecture and not permissible inference”. It was submitted that the Judge had “piled speculation upon speculation”. It was said that this speculative reasoning proceeded from the necessary and unsustainable premise that the whole of the ceiling collapsed onto the plaintiff, which was being denied by the appellant.
In my view these findings and inferences were open on the evidence and were not so improbable as would suggest that there is an appropriate ground of appeal. Once the Judge had been satisfied about the credibility of the plaintiff and the situation with the ceiling and that the whole of the ceiling came down, bearing in mind the structure, it was appropriate and logical for his Honour to conclude that the interference with the ceiling had been by an unknown person in a substantial way and not just simply an individual deciding for his or her own purpose to mischievously remove the ceiling tiles.
This leads to the next factual finding which the appellant claimed was erroneous, namely, that the Judge erred in finding that major works were being undertaken in the building at the time when the plaintiff was injured on 22 August 2000.[100]
[100] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [133].
Building works in August 2000
The specific finding of the Judge was that Colliers were moving out of the building and that the Attorney-General’s Department was taking over the available space on level 3.[101] This therefore involved decommissioning of the Colliers office in July and August 2000. This factual finding was the starting point for later findings made by the Judge, which included that the ceiling had been replaced or interfered with by an unknown contractor which in turn led to the ceiling falling down on the plaintiff.[102]
[101] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [133].
[102] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [126].
The appellant submitted that the evidence in the case did not support the finding of building works having been done in August 2000. Instead it was submitted, on the basis of exhibits referred to by the Judge, being Exhibit 1D36[103] and Exhibit 1D37,[104] that the decommissioning had occurred in July in relation to Colliers and the Attorney-General’s Department had not started with its building work until September 2000.
[103] Appeal Book Volume 5 (AB 5), 121-194.
[104] AB 5, 195-289.
In considering the submissions of the appellant, it is necessary to draw together the evidence which was before the Judge in relation to building works, particularly in relation to damage done to the ceiling lift on two occasions prior to the date of injury of the plaintiff. The evidence was not simply limited to the two exhibits referred to above.
The evidence which was before the Court from John Armstrong, who was the building’s Operations Manager, was in the form of a statement dated 17 December 2003.[105] Mr Armstrong was unable to be called because he had died by the time of the trial so his statement was instead received. His statement is relevant not merely to the date of building works, but also to the use of the lifts by tradesmen, which is relevant to some subsequent arguments of the appellant. Relevant to the building works and the lift were these statements:[106]
[105] AB 5, 63-6.
[106] AB 5, 64.
During 2000 and at other times, there were tradesmen constantly going in and out of the building carrying out refurbishment work.
On all occasions when tradesmen were given access to the building they were provided with a ‘General Conditions of Approval for Building Works’ document prepared by Colliers, which sets out the worksite conditions.
One of those conditions deals with the use and operation of the lifts.
Colliers kept a written log of all building contractors that were provided with keys to access the building. This information may be contained in our archived records.
I cannot recall being asked to attend the goods lift or for that matter, any lift within the building at 45 Pirie Street on or shortly after 22 August 2000 to attend to or arrange repairs to the ceiling panels.
However, it has been my experience over the years that the ceiling panels within lift cars are always subject to abuse by various users of the lifts.
Furthermore, we ask all building contractors using lifts in any building under our management/control, to exercise due care when using the goods lifts and in doing so they are allowed to remove and reinstate the ceiling panels in order to facilitate the transport of larger objects such as sheets of gyprock etc.
…
Colliers’ records will show that I carried out an inspection of 45 Pirie Street on 16 August 2000 and then again on 27 December 2000.
…
The report indicates that there was some construction work in progress in August 2000 but the report does not identify the name of the builders. I believe that a builder by the name of Chevello may have been working under direction from Geoff Gora, on behalf of the South Australian Government in the refurbishment of the area that was occupied by Colliers, which was to be later occupied by the Attorney-General’s Department. I also believe that the fit-out work for the new occupancy may have been awarded to Mossop Builders. However, from memory, there may have been other refurbishment work going on within the building and as such, our records may indicate that a number of building contractors had been provided access to the building site in August 2000. Bill Rogers was a site foreman for Mossops and sometimes I allowed him to provide a key to other builders and their sub-contractors.
[Emphasis added]
These statements provide evidence of construction work in progress in August 2000 and they refer particularly to the area that had been occupied by Colliers and which was later to be occupied by the Attorney-General’s Department.
The reports on which Mr Armstrong was relying were the result of an inspection undertaken on 16 August 2000[107] and another on 27 December 2000.[108] In relation to the report compiled regarding the 16 August 2000 inspection, there is a reference to “Level 3 demolition”, in the section headed “Building Internal”.[109] There is also a further reference to “level 3 construction site toilet filthy”, under the heading “Toilets”.[110] Therefore, this inspection report indicates that demolition was occurring as at 16 August 2000 at level 3.
[107] Exhibit 1D38, AB 6, 290-4.
[108] Exhibit 1D39, AB 6, 295-8.
[109] AB 6, 293.
[110] AB 6, 293.
With regard to the report compiled in relation to the inspection dated 27 December 2000, under the heading “Building Internal”, there is again a reference to building works which includes level 3 and a further reference to toilets at level 3 on the construction site.[111]
[111] AB 6, 298.
These reports would also suggest that some form of building work was still being pursued on level 3 as at 27 December 2000.
The evidence with regard to the goods lift is contained in a number of documents. In order of chronology, the work order invoice number 23165 from Kennedy[112] refers to an order having been received as at 26 July 2000 and the time required was expressed to be “ASAP”. It included the following notation:[113]
S/I black anodised ‘T’ bar grid to roof of lift cover and Install client’s stainless tiles to new grid.
[112] AB 6, 361-2.
[113] AB 6, 361.
The work order refers to having picked up the T-bar on 31 July and then the invoice refers to the work having been done on 2 August 2000.[114] The invoice again indicates that the work was “service call to supply-install black anodised T‑bar grid to roof of lift car and install client’s stainless steel tiles to new grid”.[115] The evidence of Mr Adamson confirmed that this work was done:[116]
Q. That work done on particularly 2 August was to do something to the T-bar grid and install the ceiling.
A. Yes.
Q. And that process took about an hour, did it, on 2 August.
A. Yes.
Q. When you left the premises on 2 August, the ceiling of the goods lift was fixed in position.
A. Yes.
Q. And in your assessment, it was safe.
A. Yes.
[114] AB 6, 361-2.
[115] AB 6, 362.
[116] AB 4, 1299, 3-10.
On 3 August 2000, after the installation had taken place, it was then inspected by Colliers.[117] Also on that date, it was noted that ceiling panels in two of the other lifts, namely lifts 2 and 5, not being goods lifts, also required straightening of the ceiling panels.[118]
[117] AB 6, 303.
[118] AB 6, 305.
On 10 August 2000 Mr Adamson reported to John Armstrong that the T‑Bar was bent and that a piece of the ceiling was missing from the ceiling of the goods lift.[119]
[119] AB 4 1286, 1308-9.
Colliers’ order book indicates that, on 10 August 2000, John Armstrong requested Kennedy to “Replace goods lift ceiling”.[120] This is, of course, a mere eight days after it had already been replaced on 2 August 2000.
[120] AB 6, 306.
A further reference is contained on 16 August 2000 in the same order book, that it was reported by Craig Adamson from Kennedy that “Goods lift replacing ceiling tiles”.[121] This would appear to have been converted into the job being done by Kennedy on 17 August 2000. An invoice from Kennedy, numbered 23353, described the work as being: [122]
Service call to supply/install mill finished aluminium prepainted to black satin finish. Cut/install to reinstate lift ceiling suspended grid.
[121] AB 6, 306.
[122] AB 6, 364. See also work order at AB 6, 363.
The notes of Mr Armstrong also indicate that on 17 August 2000 that work was done on the goods ceiling lift,[123] which also appears to have been inspected by him on 18 August 2000.[124]
[123] AB 6, 356.
[124] AB 6, 356.
The book that was kept in relation to the shutting off of the lift by use of a key indicates that on 17 August 2000, Mr Adamson had a key to shut off the goods lift.[125] There was no similar entry for 2 August 2000, although it may well be that the register of keys in the exhibit was incomplete.[126]
[125] AB 6, 359.
[126] AB 6, 358.
The injury alleged by the plaintiff occurred only five days after the second of the repairs to the ceiling of the goods lift.
It is against this background that the information set out in Exhibits 1D36 and 1D37 should be viewed.
Exhibit 1D36 is a property management report for July 2000 and the covering letter which encloses the management report is dated 22 August 2000.[127]
[127] AB 5, 121.
Under general management issues in that monthly report the following insert occurs:[128]
Att-Gen – new lease of levels 3, 5 & 6 – lease executed by Govt and commencement 27.7.00 – incentive processed and paid in August as capex – 3 months rent free for lvl 3 Level 3 decommissioning – cost being shared by Colonial/CJ – Govt coordinating project in conjunction with fit-out and carpet replacement - tenders close 25.8.00.
[128] AB 5, 128.
Exhibit 1D37 is the monthly report for August 2000 and the covering letter is dated 28 September 2000:[129]
We are pleased to enclose a hard copy of our Management Report for the month of August 2000. Copies of the Financial Statements were forwarded previously to Tuam Pham.
We look forward to discussing any issues arising out of the report during our meeting on Friday 28 August.
[129] AB 5, 195.

Under the heading “Executive Summary” there is a reference to:[130]
· Govt coordinating decommissioning of lvl3 with fitout of 3, 5 & 6 – start Sept with agreed scope break
· Level 3 – first instalment of $30,176 for penalty break clause received
[130] AB 5, 197.
Under the heading of “General Management Issues” it was stated:[131]
Level 3 decommissioning – meetings held with govt re costings and tenders – recommendations received and tender let – refer to separate reports.
…
Decommissioning of level 3 to start in September – CJ Building Operations Manager to attend site meetings for works and fitout – Govt advised of preferred contractors and need to control works within the building tenancy fitout guidelines – new contracts to be let for lvls 3, 5 & 6 fitout – minor alterations for JB Were tenancy on lvl 13.
[131] AB 5, 202.
Finally in that August report there is a reference under “Insurance Claims” to the injury to the plaintiff on 22 August. The description is:[132]
Injury in goods lift – contractor undertaking work for a tenant removed part of the lift ceiling and part fell causing an injury to his face.
[132] AB 5, 203.
Counsel for the appellant strongly relied on these reports as indicating that the building works for fit-out were not commenced by the Attorney-General until after the worker’s injury. This was by reason of the tender date being later than his injury and a reference to the fit-out commencing in September. However, I note that there is a reference to decommissioning at level 3 which indicates that, in July, the decommissioning at level 3 was “in hand”.[133] And then as at August there is still a reference for the whole of August as “level 3 decommissioning”.
[133] AB 5, 123.
It may well be that the Judge was not correct in finding that the fit-out had commenced, however the evidence that I have set out above and upon which the Judge relied, does not necessarily contradict a finding by the Judge that there was building work in the form of decommissioning and construction work taking place in the building in August 2000, inclusive of the time at which the plaintiff had his injury. I therefore reject that aspect of the appellants’ argument.
Ground three – negligence of the owner and contributory negligence.
Negligence of the owner
The appellant contended that the Judge erred in his finding that Colliers was negligent. The particular findings of the Judge were summarised at paras [133] to [135]. His Honour said:[134]
I find that in August 2000 there were major works being undertaken in the building. Colliers themselves were moving out and the Attorney General’s Department was taking over the available space. This involved the decommissioning of the Colliers office in July and August 2000. It was during this period of time that Kennedy’s were required to repair and install the ceiling as previously discussed. The fact that the ceiling required some repair is consistent with the lift being used as part of major works. I infer that the ceiling was interfered with by a person working in the building. I infer that the person who took out the ceiling and then replaced it, or interfered with it in a substantial way, had permission from Mr Armstrong to do so. That is the likely position given that “fit out” work was being undertaken at the relevant time. The state of the ceiling when Mr Valeondis first entered the lift is consistent with the entire ceiling having been taken out and not put back properly. If a tenant such as AAP or a stranger had interfered with the ceiling it is unlikely that they would have taken out the entire ceiling.
I find there was no system or no adequate system in place for Colliers to check that the replacement of the ceiling by such a person as a contractor was performed in a competent manner. Mr Armstrong simply relied on the contractors to perform the job competently.
I also find that given the “fit out” was occurring Mr Armstrong should have instructed Kennedy’s or Otis to remove the ceiling in any event for the period of the work. I am fortified in that view by the fact that two service calls made by Kennedy’s shortly prior to the accident ought to have put Mr Armstrong on notice that the ceiling of the goods lift was, at the very least, being abused. The fact that it appears that part of the frame needed replacing indicates that whoever was dealing with the ceiling was not doing so appropriately.
[134] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [133]-[135].
Bearing in mind that there had been two major examples of interference with the ceiling of the goods lift such that it required replacement on two occasions in August shortly prior to the plaintiff’s injury, this was likely to be connected with the works being conducted in August which included the carriage of large items that went above the ceiling height of the lift. This was not only true of the goods lift but also of the ceilings of lifts 3 and 5, which were also found to be damaged on 3 August 2000. In my view this was not pure speculation or conjecture as discussed in the case law.[135]
[135] Luxton v Vines (1952) 85 CLR 352, 359-60; Liverpool City Council v Turano (2008) 164 LGERA 16, 76 [360], 82-83 [403]-[406].
Further, to the extent that the appellant relied upon the use of keys and the registration of lifts for the purposes of undermining the credibility of the plaintiff and also the reasoning of the Judge, it is to be noted that the statement of Mr Armstrong, as discussed earlier, indicated that building contractors were allowed to remove and reinstate the goods lift ceiling panels at their discretion in order to facilitate transportation of larger objects. Further the register of keys was not complete in relation to all persons who wished to utilise the lift for building purposes. The evidence of Mr Adamson, who was accepted as a witness of credibility by the Judge, indicated that goods above the appropriate height were often taken in lifts in circumstances where a key was not used for the purposes of shutting down or isolating the lift for carriage use.
In short, there was evidence upon which the Judge could reasonably infer that this was not simply a case of removal of a couple of tiles but a more fundamental problem of an interference with the primary bar and the hanger, either because of a removal and subsequent wrong replacement of the ceiling or, alternatively, because of interference with and dislodgment of the hanger. The likelihood is that this would have occurred as a result of a contractor’s work, given all of the ambient circumstances.
I therefore do not consider that the Judge erred in so finding and I do not consider his finding to be speculative.
The next matter of contention was that the Judge erred in finding that the perpetrator had permission from Mr Armstrong of Colliers to remove and replace the ceiling.[136] Again, this is dependant upon the earlier finding by the Judge as to how the ceiling came to be dislodged. In my view given the evidence, this was not a fanciful inference and the records of Colliers strongly suggest that quite tight control was exercised in relation to Armstrong knowing what contractors were at which level at any point of time. It was indeed improbable for an individual to have taken steps to remove clips and then inappropriately to have replaced them. It begs the question as to why there would be any attempt to try and replace the ceiling tiles once removed. In my view this certainly points towards a contractor’s involvement and that Armstrong had given permission for the lift to be used in that way. I reject the plaintiff’s argument on this point.
[136] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [133].
Finally, it was submitted that the Judge erred in deciding that there was no system, or no adequate system, for Colliers to check that the replacement of a ceiling by a contractor was performed in a competent manner. Instead Mr Armstrong simply relied on contractors to perform that job competently.[137] Given the volume of work that was being done in August and given the earlier problems with the ceilings of lifts just prior to the injury sustained by the plaintiff, in my view, breach by Colliers is made out. I consider there was an appropriate basis upon which the Judge could properly find that Mr Armstrong should have instructed Kennedy or another sufficiently competent person to remove the ceiling for a period of time to enable the relevant work to have been completed and/or for it to have had more regular inspections to ensure that the use of the ceiling of the goods lift was not being abused by contractors.
[137] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [134].
I therefore reject the appellants’ argument on this point.
Contributory negligence
The appellant again sought to disturb a primary finding of fact in order to establish contributory negligence against the plaintiff. The appellants argued two grounds for the contributory negligence. First, it was submitted that the ceiling of the lift came down as a result of the plaintiff striking the relocated back tiles or some other part of the ceiling with the long parcel. In relation to this ground the Judge found as follows:[138]
The defendant bears the onus of proof in relation to the question of contributory negligence. The plaintiff denied in any way bumping or knocking the ceiling. However I have not accepted his evidence as to the size of the parcel he picked up from AAP. I have found that he did have to manoeuvre his parcel when getting it into the lift. It is possible that he bumped or in someway knocked the ceiling when manoeuvring his parcel. However whatever he did it did not cause the ceiling to fall immediately. I have already found that the ceiling was left in a precarious state. It is possible that it was made even more precarious by the action of Mr Valeondis. It may be that he, for example, banged the wall of the lift hard such that it moved the bars slightly. The evidence does not allow me to say one way or the other. On the evidence I am unable to find proved on the balance of probabilities that Mr Valeondis in any way contributed to the collapse of the ceiling or failed to take care for his own safety.
[138] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [154].
Secondly, it was argued that the circumstances were such that the plaintiff was aware of the risk of this eventuality. In relation to this head of contributory negligence, the Judge said:[139]
I reject that argument. Whilst it is true that the plaintiff did notice the condition of the ceiling as he travelled in it to collect the parcel there was no reason for him to necessarily think that the entire ceiling would collapse. Indeed on his way up to AAP nothing happened. It was only after he put his parcel into the lift and commenced his downward journey that anything occurred.
[139] Valeondis v Permanent Trustee Aust Ltd [2008] SADC 143, [153].
The plaintiff offered no legal basis in its written submissions on which this court might even consider overturning the Judge’s finding of fact in this regard. Counsel chose to add nothing further at the hearing; therefore the submission remains merely a bare assertion. I reject this ground of appeal, as the findings made by the Judge would exclude this being a feasible argument.
Conclusion
For these reasons, I consider that the appeal fails on all grounds and that it should be dismissed.