Potter v Yeung (Ruling No 2)
[2018] VCC 1673
•18 October 2018
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION GENERAL LIST
Revised Not Restricted
Suitable for Publication
Case No. CI-17-00035
ELIZABETH ANNE POTTER Plaintiff
v
WILLIAM YEUNG First Defendant
and
SANTOSA REALTY CO PTY LTD Second Defendant
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JUDGE: HIS HONOUR JUDGE O'NEILL
WHERE HELD: Melbourne
DATE OF HEARING: 9, 10, 11, 15, 16, 17, 18 October 2018
DATE OF RULING: 18 October 2018
CASE MAY BE CITED AS: Potter v Yeung & Anor (Ruling No 2)
MEDIUM NEUTRAL CITATION: [2018] VCC 1673
RULING
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Subject: JURY – DISCHARGE
Catchwords: Jury trial – claim for damages by tenant against landlord and managing real estate agent as a result of injury suffered when ascending stairs at residential premises – various causes of action, including breach of occupier’s duty, breach of general duty in negligence, statutory breach and breach of Residential Tenancy Agreement – issues relating to delegation of landlord’s duty of care – complexity of the questions to be placed before the jury - whether within the capacity of the jury to determine – whether the matter should proceed as a cause.
Legislation Cited: Wrongs Act 1958; Residential Tenancies Act 1997; County Court Civil Procedure Rules 2008
Cases Cited: Gunns Limited & Ors v Marr & Ors (No 5) [2009] VSC 284; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Jones v Bartlett & Anor (2000) 176 ALR 137; Toomey v Scolaro Concrete Constructions Pty Ltd and Ors (No 2) [2001] VSC 279; Shields v Deliopoulos [2016] VSC 500; Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Ruling: Jury to be discharged – matter to proceed as a cause.
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APPEARANCES:Counsel Solicitors
For the Plaintiff Mr A D B Ingram with Mr J Valiotis
Arnold, Thomas & Becker
For the First Defendant Mr A W Middleton Mills Oakley For the Second Defendant Mr C G K Madder Moray & Agnew
HIS HONOUR:
1This is a jury trial in which the plaintiff, Ms Potter, claims pain and suffering and special damages as a result of injuries she sustained when she fell while ascending stairs at the rear of rented premises at 73 Kanooka Road, Boronia, at about 9.00pm on 19 May 2014.
2She says the fall occurred because of the dilapidated and slippery state of the steps, the poor lighting in the area and the fact that there was no handrail. The incident happened at night when it was drizzling with rain. She had walked into the backyard and was ascending the steps when she slipped on the second or third step.
3The first defendant, Mr Leung, the owner of the premises, was, throughout the tenancy of the plaintiff, living interstate, and although he purchased the property as an investment in 1992, visited it on only a few occasions over the years. In evidence, he said he retained Santosa Realty Co Pty Ltd, the second defendant, in particular the rental manager, Ms Hunter, to procure tenants, inspect the property, collect the rent and generally to manage the property in accordance with a Management Agreement.1
4Ms Potter entered possession under the lease in September 2013.
5The cause of action against the first defendant is in negligence, breach of the occupier’s duty pursuant to s14B of the Wrongs Act 1958, breach of the Residential Tenancies Act 1997, in particular, s68, and breach of contract, being a Residential Tenancy Agreement (“the lease”).
6The claim against Santosa, the managing real estate agent at the relevant time, is in negligence. Each defendant denies the allegations and alleges contributory negligence on the part of the plaintiff.
Exhibit D1 - 1
7In the course of the trial, there was discussion with counsel as to how the questions to go to the jury should be framed. At an early time in the proceeding, I expressed the view that I was concerned the issues to go before the jury were complex, with the consequent risk of a perverse verdict. All counsel submitted that the evidence ought be concluded before a determination was made. I acceded to that request. It is now day seven of the trial.
8The evidence is concluded and I have heard further submissions from counsel.
Leading Counsel for the plaintiff, Mr Ingram, submitted the matter ought proceed for determination by the jury and, with appropriate direction, the questions to be answered were within the capacity of a jury to render a verdict based upon the facts of the case.
9Both Mr Middleton, counsel for the first defendant, and Mr Madder, counsel for the second defendant, submitted the matter ought proceed as a cause as the questions to go to the jury, the directions to be given and the legal issues underlying the case, had become too complex.
10I have determined that the proceeding should not go for determination by a jury, given the complexity of the questions and issues involved. The matter should proceed before me as a cause. These are the reasons:
11Order 47.02(3) of the County Court Civil Procedure Rules 2008 provides:
“Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.”
12It is not necessary for me to examine all of the authorities relating to the circumstances which lead to a court to determine a trial should proceed without a jury. Generally, a party is entitled to a trial by jury, when that has been signified by appropriate notice in accordance with the Rules. A court may override that entitlement where the interests of justice dictate otherwise. Where the level of complexity of the issues for jury adjudication reach a certain level, a court may determine to dispense with a jury.
13In Gunns Limited & Ors v Marr & Ors (No 5),2 Forrest J summarised the factors relevant to the exercise of discretion:
·The considerations which may influence a court to dispense with a jury are unfettered and its discretion may be exercised, where warranted, by the dictates of justice.
·The following matters may be relevant:
·the complexity of the factual matters
·the complexity of the legal issues the jury would be required to consider
·the complexity of issues relating to liability, especially where the claim involves multiple causes of action and multiple defendants
·the complexity of the jury’s task in respect to the assessment of damages
·the potential duration of the trial (of itself never the determining factor)
·the stage at which the proceeding or trial has reached.
14The starting point are the allegations made by the plaintiff against the first defendant, Mr Yeung. The facts, themselves, are relatively straightforward. Mr Ingram submits that the first question for the jury should be whether Mr Yeung breached his general duty of care to Ms Potter or, alternatively, whether he was in breach of the duty as occupier pursuant to the provisions of s14B of the Wrongs Act. It is not uncommon for juries to determine whether there has been a breach of s14B, although the provisions of Part X of that Act now make the task of charging a jury on matters such as significant and insignificant risks of harm, admissions, causation, awareness of harm and the like, make that task
[2009] VSC 284
complex.
15The second question, says Mr Ingram, should be whether Mr Yeung was in breach of s68 of the Residential Tenancies Act. He had previously relied on breach of Condition 2 of the lease, but has abandoned that cause of action. Section 68 provides that a landlord must ensure the rented premises are maintained in good repair.
16In my view, it is more appropriate that there be one question in respect of the first defendant’s duty of care, and that is, whether he was in breach of his duty as occupier pursuant to the Wrongs Act. Notwithstanding the complexities referred to, that question in this case is within the capacity of the jury, properly charged, to understand and answer.
17However, an issue has arisen in relation to the duty owed by Mr Yeung. Mr Middleton, counsel for Mr Yeung, submits that the duty of care owed is capable of being delegated to Santosa, and in the circumstances of this case, I ought to charge the jury that whatever duty was owed to the plaintiff by the landlord, it was delegated to the agent.
18All parties agree that the issue of whether the landlord’s duty was delegable, and, if so, whether it ought be delegated, is a matter I will have to determine, and instruct the jury accordingly. I have been taken to a range of authorities and considered the evidence, particularly that of Mr Yeung and Ms Hunter. There has also been tendered into evidence various inspection reports, condition reports and the agreement between Mr Yeung and Santosa, which are relevant. The issue of whether the duty is delegable and, if it is, whether it has been delegated to the agent, is far from straightforward, and requires careful analysis.
19As earlier stated, the contention of the plaintiff is that there were three aspects of the state of the premises which were causatively related to her fall. The first is degraded and slippery wooden stairs at the rear of the property; the second,
that a spotlight immediately above the stairs was not working, and had not worked from the commencement of the lease, and the third is the absence of a handrail alongside the stairs. While I had not thought the matter through to conclusion, there is the prospect that the delegation of the occupier’s duty may relate to some, but not all, of these aspects of defects (if that was what the jury concluded) in the premises.
20There is significant authority for the proposition that a landlord’s duty of care is capable of delegation to a managing real estate agent.3 As to whether the duty ought be delegated will depend on the facts of each case.
21The second complicating factor is the claim by Ms Potter against Mr Yeung for statutory breach, that is, a failure, as required by s68 of the Residential Tenancies Act, to maintain the premises in good repair. Mr Ingram made the submission, based upon various authorities, that a breach of the Act would give rise to a claim for common law damages. Some of those authorities, particularly cases concerning breach of health and safety regulations, support the proposition that a breach of an Act which is designed to provide for safe premises may give rise to a cause of action in common law damages.4 The defendants submit breach of statutory duty does not give rise to a claim for common law damages.
22In Shields v Deliopoulos,5 Daly AsJ, in an appeal from a determination of the Victorian Civil and Administrative Appeals Tribunal, examined the meaning of various phrases used in s68, including “ensure”, and “good repair”. She concluded the obligation upon a landlord to maintain premises in good repair imports an obligation to put them in good repair at the outset of the tenancy.6 It is likely I would have to charge the jury in this trial on the meaning of those
See Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, Jones v Bartlett & Anor (2000) 176
ALR 137 at paragraphs [86], [193] and [237]
See Toomey v Scolaro Concrete Constructions Pty Ltd & Ors [2001] VSC 279 at paragraph [125]
[2016] VSC 500
At paragraph [38]
phrases, and when the duty to maintain in good repair commenced.
23Mr Ingram submits I should instruct the jury that, subject to being satisfied that the landlord failed to keep the premises in good repair, a breach in the statute would result in the plaintiff being entitled to damages.
24Although Mr Middleton made a submission to the contrary based upon s5 of the Act, I am of the view the statutory duty, if it sounds in damages, cannot be delegated to the agent. Again, this issue of whether breach of statutory duty entitles the plaintiff to damages for injury, is complex. It will require a careful analysis of the authorities and the facts.
25I have come to no concluded view as to whether a claim for statutory breach is open to the plaintiff. Regard will be had to the purposes of the Act,7 the jurisdiction of this Court8 under the Act and principals of statutory construction. Further consideration will be required as to whether a purpose of the Act is as to health and safety of tenants in the premises. My initial research would indicate there are arguments both ways.9
26Further, the defendants submit that any consideration of statutory breach, if open, would require the jury to consider other provisions of the Act, in particular, s62, which requires a tenant who becomes aware of damage to give notice to the landlord. There may be an issue as to whether the steps, the light and the handrail constitute “damage”.
27The lease10 says, in addition to the obligations upon the landlord to keep the premises maintained in good repair, there are various obligations upon the tenant, including the requirement to give notice to the landlord if the tenant becomes aware of damage (clause 3(c)), to notify the landlord of any defects in the premises (clause 13) and to replace all lighting tubes and globes when they
See Section 1
See Sections 447, 509 and 510
Halsbury’s [135-415], [415-1390]
Exhibit E
become defective (clause 30). There is the prospect of the interpretation of s68 of the Act in the light of those provisions, given the lease is before the jury as evidence.
28Mr Ingram contends I should instruct the jury, in relation to damage or defects that, in the context of the lease, can only mean damage or defects which arose over the course of the lease and were not apparent at the outset of the lease. He relies on the principles established in Shields in that regard. Again, this is a complicating factor and I have not come to any concluded view on the issue.
29In respect of these various issues, in particular delegation of duty of care, statutory breach, and possibly damages, the determination I would have to make so as to properly instruct the jury, would have to be done quickly, now the evidence has concluded.11 I am distinctly uncomfortable with having to determine such significant issues within a short time.
30Those matters aside, attempting to explain to a jury that the duty of care of the landlord is delegated to the real estate agent, if that is the conclusion I come to, is a complex direction. If I were to so find, the duty of the real estate agent becomes the occupier’s duty. There is a real prospect such a direction will lead to confusion. There is also the possibility that the duty of the landlord may, at the outset of the lease, be one delegated to the agent, and then by subsequent conduct, that delegation is rescinded.12
31Thus, at this time, the questions which go to the jury are not yet settled and will require a significant ruling, and a substantial direction to the jury.
32The plaintiff’s claim in damages is in respect of pain and suffering only; however, there is an additional claim for special damages in accordance with recommendations by an occupational therapist, Ms Kathryn Clarkson.13 Her opinion is to the effect the plaintiff requires a range of equipment and aids to
Although, as commonly occurs, the reasons for the Ruling can be given at a later time
See Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Exhibit K
assist her in various domestic and recreational tasks, given her injuries. The report provides a table of those costs and expenses, which would indicate many of the items need to be renewed on a regular basis. Thus there is a complexity to the assessment of those damages. It may involve application of the multiplier tables. That, of itself, is not a matter sufficient to warrant a discharge of the jury, but is another matter to be taken into consideration.
33I am informed that there is an allegation by the second defendant against the first, that in the event of a finding against the second defendant by reason of some contractual arrangement, the first defendant should indemnify the second defendant against any damages incurred. It was agreed that that indemnity argument would be determined by me at the conclusion of the jury verdict. While it is only a minor matter in the scheme of things, nonetheless, it would be convenient to determine that issue as part of a cause.
34Considering all the matters to which I have referred, in particular the complexity of the questions and the instruction necessary to the jury, and the time which will need to be taken to determine the issues of delegation and statutory breach, I am of the view it is in the interests of justice that the matter proceed as a cause and that the jury be discharged. The complexity of the issues is such that there is too great a risk of a perverse verdict. I shall discharge the jury and make appropriate orders.
35If the matter was to proceed before the jury, Mr Ingram submitted the issue of contributory negligence ought be withdrawn. I will not make any ruling on that issue at this time. That can be a matter of further submissions in due course.
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