Rouessart v Preuss

[2008] WADC 15

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ROUESSART -v- PREUSS & ANOR [2008] WADC 15

CORAM:   GROVES DCJ

HEARD:   4 FEBRUARY 2008

DELIVERED          :   8 FEBRUARY 2008

FILE NO/S:   CIV 2694 of 2005

BETWEEN:   AUDREY MAY ROUESSART

Plaintiff

AND

HOLGER PREUSS
First Defendant

ORION LABORATORIES PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Summary judgment for first defendant - Leased premises - Liability of occupier - Whether owner was an occupier

Legislation:

Occupiers' Liability Act 1985, s 5

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr K Bradford

First Defendant              :     Mr T Clavey

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Bradford & Co

First Defendant              :     Clavey Legal

Second Defendant         :     Mullins Handcock

Case(s) referred to in judgment(s):

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Eng Mee Yong v Letchumanan [1980] AC 331

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Hospital Contributions Fund of Australia v Hunt (1982) 44 ALR 365

1. GROVES DCJ:  The plaintiff appeals against the decision of Registrar Kingsley made on 5 October 2007 whereby it was ordered, on a summary judgment application made by the first defendant, that the plaintiff's claim against the first defendant be dismissed. 

2. So far as is relevant O 16 r 1 of the Rules of the Supreme Court 1971 provides:

   "(1) Any defendant to an action may … apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order … that judgment be entered for the defendant with or without costs."

3. It is trite law that the power to grant summary judgment should not be exercised unless it is clear that there is no real question to be tried:  Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.

4. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for trial in the ordinary way, and once it appears that there is a real question, whether of fact or law and that the rights of the parties depend upon it, it is not competent for the courts to dismiss the action as frivolous or vexatious and an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.

5. Put shortly, the power to order summary judgment should be reserved for a case which is so obviously untenable that it cannot possibly succeed.  In this kind of application the version of facts put forward by a plaintiff, if not inherently incredible, should be accepted for the purposes of the application as if they were the facts that would be ultimately accepted at trial.  This does not mean however that the court will accept every statement made in an affidavit, however equivocal, lacking in precision, inconsistent with undisputed contemporary document or other statements made by the same document, or inherently credible: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 per Lord Diplock.

6. In addition the court should be astute not to risk stifling the development of the law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospital Contributions Fund of Australia v Hunt (1982) 44 ALR 365 at 373.

7. The first defendant says that he has a complete defence to this action and that it should be disposed of summarily.

The plaintiff's claim

1. This action arises in respect of injuries which the plaintiff allegedly sustained when she slipped and fell in the course of her employment on 11 January 2000 at premises at Carlisle ("the premises").  The first defendant was at all material times the owner of the premises.  The second defendant ("Orion") at all material times was the plaintiff's employer and carried on business from the premises. 

2. In her statement of claim the plaintiff alleges:

   4The First and Second Defendants:

   4.1were occupiers of the premises within the meaning of the Occupiers' Liability Act 1985 (WA) and therefore, by s 5 under a duty to ensure the plaintiff did not suffer injury or damage by reason of dangers due to the state of the premises or anything done or omitted to be done thereon; and

   4.2were under a duty to take steps to guard against any reasonably foreseeable risk of injury to persons upon the premises.

   5.On 11 January 2000, in the course of her employment, the plaintiff was collecting storage equipment from the packaging area at the premises when, attempting to cross the smooth, wet floor, she stepped on an item of packaging on the floor, slipped and fell backwards ("the accident").

   6.By reason of the accident, the plaintiff sustained (the particularised) injuries.

   7.The floor of the packaging area at the premises constituted a "danger" within the meaning of s 5 of the Occupiers' Liability Act.

   Particulars of Danger

   7.1Due to the state of the premises in that:

   (a)the floor surface was smooth concrete which was inherently slippery and extremely so when wet;

   (b)the floor was not treated, coated or otherwise finished with a rough or non-slip surface;

   (c)there were no signs or other warning in the entrance to the packaging area and/or surrounding areas warning that the floor was or could become slippery; and

   7.2Due to anything done or omitted to be done on the premises in that:

   (a)no mats were placed on the floors or sections thereof over which the plaintiff was required to traverse;

   (b)no rough surface or other non-slip coating was applied to the floor or sections thereof over which the plaintiff was required to traverse;

   (c)the floor was often allowed to become/or remain wet for extended periods;

   (d)there was no adequate method of inspection and/or clearing in place to ensure the floor or the area(s) over which the plaintiff was required to traverse, was kept clear of object, debris and other material which could cause someone traversing the area(s) to slip.

   8.At all material times the First Defendant knew or ought to have known of the danger presented by the floor as detailed in par 7 above.

3. The statement of claim then goes on to allege that the accident was caused by a breach of statutory duty on the part of the first defendant (which breaches are particularised in par 10) or alternatively was caused by negligence on the part of the first defendant as occupier of the premises (particularised in par 12).

4. The first defendant admits that he was the owner of the premises.  He denies that he was the occupier as alleged or that he was under a duty to take steps to guard against any reasonable foreseeable risk of injury to persons upon the premises.  He says that he ceased to occupy the premises and/or exercise control over them when the second defendant entered into possession of the premises on about 1 March 1990.  He further denies any breach of statutory duty or that he was negligent as alleged.

The first defendant's affidavit

1. The application for summary judgment was supported by an affidavit of the first defendant sworn 6 July 2007.  Annexed to the affidavit is a copy of a Deed of Lease dated 1 March 1990 ("the First Lease") whereby the first defendant leased the premises to the second defendant.  The lease was for an initial period of three years with a two year option.  The lease was subsequently extended by Deeds of Extension of Lease stamped 8 July 1993, 22 November 1995 and 18 August 1997 respectively.  At the time of plaintiff's accident there was no written lease but the second defendant remained in possession of the premises on a monthly tenancy.  By Deed of Lease stamped 3 August 2001 ("the 2001 Lease") the second defendant acknowledged that it had been in possession of the premises since 1 March 1990. 

2. The second defendant was obliged by cl 7.1 of the First Lease at all times during the term of the lease and any extension thereof and at all times that it remained in occupation of the premises, to maintain, replace, repair and keep every part of the premises in good, clean and substantial repair and condition, including the floor coverings.  By cl 7.3 the second defendant was responsible for keeping the demised premises cleaned and drained and free of any rubbish obstacle or hazard. 

3. Further, pursuant to cl 32.1 of the 2001 Lease, the second defendant was required to keep and maintain the premises in good and tenantable repair, including all fixtures and floor coverings.  Pursuant to cl 32.6 the second defendant was required to keep and maintain the premises in clean and attractive state; and well cleansed and in good sanitary condition free from rubbish and other dirt. 

4. The first defendant deposes in his affidavit that in accordance with the terms of the First Lease and the 2001 Lease he had no involvement in the maintenance of the premises or how the second defendant or its employees conducted the maintenance of the premises.  Further he states that the second defendant occupied the premises and that he, the first defendant, never received any complaints from the second defendant about the condition of the floor and never received any requests from the second defendant that he attend to resurfacing or reconcreting of the premises.  He states that he was not made aware of and had no knowledge of any defect, danger or hazard in the premises or created by the second defendant.

5. On that basis the first defendant says that he has a complete defence to the plaintiff's action against him. 

Occupiers' Liability Act 1985

1. By s 5(1) of the Occupiers' Liability Act a duty is cast upon "an occupier of premises" to take reasonable care for the safety of persons entering those premises.  "Occupier of premises" is defined in s 2 of the Act to mean a "person occupying or having control of land or other premises".  And "premises" is defined by that section to include "any fixed or moveable structure, including any vessel, vehicle or aircraft". 

2. The plaintiff's claim against the first defendant is premised on the first defendant being the occupier or having control of the premises.

   "It is trite law that different persons may occupy the same premises at the same time.  Once a lessee has entered into possession of premises, however, the lessor no longer occupies those premises.  And the lessor has only such control over the premises as is reserved by the lease." See Jones v Bartlett (2000) 205 CLR 166 per Gaudron J at 80.

3. The leasehold interest in the premises was conferred on the second defendant.  Exclusive possession of the premises vested in the second defendant.  It cannot be said in those circumstances that the first defendant occupied the premises.  Nor can it be said, in terms of the definition of "occupier of premises", that the first defendant had control of the premises.  The first defendant had no control over or obligation to maintain the leased premises since the second defendant entered into the lease in March 1990.

4. The First Lease does reserve to the first defendant permission to enter the premises to examine the state of repair and condition of the premises and to give to the second defendant notice in writing to effect any repairs (cl 7.7.1 and 7.7.2) and also provides that the second defendant shall not without the first defendant's previous written consent make any external or internal additions or alterations to the building including floors (cl 8.2).  In my opinion these clauses do not reserve control over the premises.  Rather they proceed on the basis that control of the premises passes to the second defendant at the commencement of the lease and that being so it requires the second defendant to keep the premises in the same condition as at the commencement of the tenancy.  Accordingly those provisions do not constitute a reservation of control of the premises.  At most, it may constitute reservation of control over some aspects of the maintenance of the premises.  The definition of "premises" cannot in my view be read as relating to items forming part of the structure as distinct from the structure as a single unit comprised of its parts: See Jones v Bartlett (supra) at [82].

Common law negligence

1. The obligation at common law is no greater than the obligation to take reasonable care to avoid foreseeable risks as required under the Act: Jones v Bartlett (supra) at [57] per Gleeson CJ.

2. The plaintiff's case against the first defendant at common law is premised on an allegation that the first defendant was an occupier of the premises at common law.  For the reasons outlined I conclude that the first defendant was not an occupier of the premises and so the claim at common law suffers the same fate as the claim premised on a breach of the Occupiers' Liability Act.

3. Furthermore it is noted that no specific allegation in the statement of claim enlivens the first defendant's common law duty as owner of the premises.  The allegations of the first defendant's alleged negligence made at par 12 of the statement of claim identified duties and obligations of the second defendant as occupier of the premises and employer of the plaintiff.  None of the allegations concern the first defendant as owner of the premises. 

Plaintiff's further contention

1. In oral submissions made by the plaintiff's counsel on hearing of the appeal it was contended that there was an inherent danger in the premises in consequence of which the plaintiff suffered her fall and was injured.  "Inherent" meaning "existing in something as an essential permanent or characteristic attribute or quality: forming an element of something intrinsic, essential".  That assertion cannot be maintained in the face of the allegation in the statement of claim par 5 where the plaintiff alleges that she "… stepped on an item of packaging on the floor, slipped and fell backwards … ".  If as alleged that was the cause of her fall or contributed to it, it cannot be said that it was as a consequence of an inherent danger, be it hidden or concealed, in the premises.

Conclusion

1. In my opinion the first defendant was not the occupier of the premises as defined.  Nor is the obligation at common law any greater than that as required under the Occupiers' Liability Act.  In terms of the lease the second defendant was responsible for the repair and maintenance of the premises and responsible for keeping the premises cleaned and drained and free of any rubbish, obstacle or hazard.  The first defendant did not reserve any control so far as those aspects are concerned.

2. In the circumstance I conclude that the first defendant has a good defence on the merits.

3. The order of the Registrar will be upheld and the appeal dismissed.