Savage v Monash University (Third Party Proceeding)
[2017] VCC 1886
•14 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION GENERAL LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-15-05439
| Shelia Savage | Plaintiff |
| v | |
| Monash University | Defendant |
| and | |
| Programmed Maintenance Services Ltd | Third Party |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 16, 17, 20 November and 7 December 2017 | |
DATE OF JUDGMENT: | 14 December 2017 | |
CASE MAY BE CITED AS: | Savage v Monash University (Third Party Proceeding) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1886 | |
REASONS FOR JUDGMENT
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Subject: Determination of Third Party Proceeding .
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr M Garnham of Counsel | Slater & Gordon |
| For the Defendant | Mr J Brett QC with Mr Y C Chen of Counsel | HWL Ebsworth |
| For the Third Party | Mr I McDonald of Counsel | Norton Rose Fulbright |
HIS HONOUR:
1 In this proceeding the defendant seeks an order that the third-party make contribution to the judgement entered against it in favour of the plaintiff on 1 December 2017.
2 There is no issue that:
(i) pursuant to the contract[1] entered into between the defendant and the third-party, the defendant engaged the third-party to maintain the crossover;
[1] Exhibit 3.
(ii) that the third-party owed to the defendant a duty of care the scope of which was informed by its obligation pursuant to the contract; and
(iii) the terms of the contract obligated the third-party:
a. to maintain the crossover in good condition, which obligation was described such that although the quality may vary over the specified maintenance intervals, there were to be no major defects at any time. The level of maintenance in turn involving a “High level of maintenance with appropriate resources applied at the appropriate time to allow high use of the asset”;
b. to inspect the crossover over on a weekly basis;
c. to isolate, repair and report hazards immediately;
d. to ensure the crossover was fully functional and safe at all times;
e. to continuously make the crossover safe and “to maintain uniform and hazard free surfaces”;
f. repair surfaces which are damaged within one week;
g. repair hazardous surfaces or non-functional surfaces immediately.
3 It is not necessary for me, in making a finding as to the third-party claim, to refer to any viva voce evidence additional to that which I have referred in the course of my Judgement of 1 December 2017, other than the following evidence of Mr Corea:
Question: In terms of more frequent inspection and maintenance for an R4 system, did the contract have requirements for inspection?
Answer: Yes, it did.
Q: And what was that, do you recall?
A: So it was a weekly inspection.
Q: There were, you've said, about 15 maintenance staff employed by PMS. Was there any understanding as to what they would do if, outside of a regular inspection, they observed a problem?
A: They would certainly report it to myself, but given - depending on the nature of what the issue was, they would certainly have the power to act. If it's something that they could fix straight away, they would fix an issue.[2]
[2] Transcript 115 L 21 to T116 L1.
…
A: The maintenance team, which in this case was program maintenance.
Q: Did they have their own gravel supply at the premises?
A: Yes, they did. They maintained the small stockpile of the material, so they could easily top up little ruts that they found.
Q: Was it their responsibility to do so if the rut was such as to require that?
A: Yes.[3]
[3] Transcript 118 L5-10.
…
Q: Mr Barker will say that you and he would go on a weekly walk around the campus?
A: That's correct, yes.
Q: With a general view to looking at what's happening and what's not happening, and what improvements might be made, what things might need to be remedied?
A: Correct.
Q: And as you'd walk around together, I think he'd say notes would be taken, and indeed, jobs could and would be generated on the spot, for attention as required?
A: Yes, that's right.
Q: Your walk around the campus obviously would have included paths, road crossings, median strips, garden beds, and all that sort of thing?
A: Correct.
Q: At no stage, as part of that process, did you ever suggest to Mr Barker that this was particular crossing needed an upgrade?
A: Yes, not - not until that stage, no, I have never suggested it to him.
Q: Now, in addition to your weekly walk arounds, PMS was also under fairly strict reporting requirements to Monash, wasn't it?
A: Correct.
Q: And that consisted of annual reports in relation to specific areas?
A: Yes.
Q: And also either weekly or fortnightly reports, depending on what particular area of the landscape we're talking about?
A: Yes, that's correct.
Q: PMS regularly provided you with those reports?
A: Correct, yes.
Q: In terms of those operational meetings, those operational meetings were held approximately monthly?
A: Yes, the ones that were minuted, yes.
Q: Can I just take you to, if you've still got it in front of you, that court book ‑ ‑ ‑ ?
A: Yes.
Q: - - - and the tab - I think it was tab 37?
A: Yes.
Q: Could I take you about halfway through those - what would you call them? Meetings?
A: Yep, meetings.
Q: Meetings. Would you call these minutes?
A: Yes, correct.
Q: Halfway through the minutes, there's one dated 11 August 2010?
A: Yes, I'll find that. Yep, got it.
Q: Does Your Honour have that?
Q: So you see, present at the meeting were yourself ‑ ‑ ‑ ?
A: Yes.
Q: Ahmad Lahza?
A: Yep.
Q: Was he your 2IC?
A: Yes, he was.
Q: And then a number of representatives from PMS: Stuart Barker, Matt Hadj, Matt Rackaman, and Damon Jenkins?
A: That's right.
Q: I won't take you through all the topics individually, but you will see, under 1.2, "Matters arising", you're requesting a final list of plantings at MRS. What's MRS?
A: Monash Residential Services.
Q: So that you could forward it Jason Whittaker. Who's he?
A: He was the manager of Monash Residential Services, or operations manager.
Q: Down the bottom of the page, in terms of monthly reports, there was some discussion about the reporting and format?
A: Yes.
Q: The reporting process itself was still a bit of a work in progress between Monash and PMS, wasn't it?
A: Correct.
Q: It was gradually evolving?
A: That's right.
Q: But to everyone's satisfaction?
A: That's correct, yep.
Q: Turning over the page, so about the third topic, "Bollards", you requested that two lockable bollards be installed in a particular area?
A: Correct.
Q: Going down the bottom, medical courtyards, it says you queried what was happening with the renovation of the medical courtyards?
A: That's right.
Q: That was a topic for discussion, and so forth. So in terms of these meetings, it would be fair to say that you were a very active participant in the meetings?
A: Yes, definitely.
Q: And you would guide a lot of the discussion. You would have questions and queries, and you would have suggestions and directions as well?
A: Yes.
Q: And that pattern continued throughout - all these monthly meetings basically involved the same format, the same sort of topics of discussion and the like?
A: Correct.
Q: You can peruse the document yourself if you wish, but I suggest that as at 11 August 2010, no one was raising an issue with PMS concerning the crossing that is the subject of this proceeding?
A: Yes.
Q: In addition those matters we've just discussed, from time to time, staff at Monash would undertake operations of their own initiative in relation to the grounds, and perhaps I can give you an example. Do you recall that in April 2010, there was a very major storm, and Monash was hit with a lot of rain, and there was a lot of issues about ponding and water building up, drainage problems and the like?
A: April 2010 doesn't ring a bell, but yes, I wouldn't be surprised. We had a couple of notable storms that hit the campus.
Q: Do you recall that at that time, Monash undertook an audit of the grounds, with a view to rectifying issues where there had been pondage building up in relation to bitumen roads, drains and so forth?
A: Not off the top of my head, I don't recall, but yeah, it certainly would have - might have been the case, yes. We like to be proactive with doing inspections and making sure things are working as they should.
Q: So it wasn't just a hands-off, "PMS, you go and do it. Just report back to us, and we don't have to worry about it anymore." It wasn't that type of situation at all, was it?
A: No, it wasn't, no.
Q: The crossing, as you already said, was treated as an R4 area, and that basically involved weekly inspections of the area, and any necessary maintenance following from those inspections being attended to?
A: Correct.
Q: And the sort of maintenance that might be required would include picking up any litter?
A: Yes.
Q: From garden beds and the like?
A: Yep.
Q: Sweeping and blowing?
A: Correct.
Q: Carrying out any small surface repairs if they were required?
A: Yeah, that's right.
Q: You know, topping them up with a bit of gravel and the like?
A: Yes.
Q: But it certainly didn't include carrying out major refurbishment works?
A: Yes. It did not include, yeah. But, certainly any hazards that they noticed, you know, they would bring to our attention.
Q: Yes, and then you'd make a decision what to do about it?
A: Correct.
Q: If any?
A: Yes, yeah.
Q: Mr Barker will say that the area in question, the crossing, in terms of the designated areas at the university, was treated as part of the arts law precinct; is that your recollection?
A: Yes.
Q: He'll say that there were regular inspections carried out of the area, once a week, and normally on a Friday?
A: When he says "inspections", with myself, is that what you're ‑ ‑ ‑
Q: No, not with yourself, this is a part of the contract?
A: By his staff, yes, that's right, yes.
Q: And, presumably, you would have seen PMS staff carrying out that role from time to time in a general walk around?
A: Correct, that's right.
Q: Certainly, you didn't identify this crossing as constituting any particular risk prior to this particular accident occurring?
A: Yes.
Yes, thank you, Your Honour.[4]
[4] T120 L6 to T143 L15.
4 Essentially it is the position of the defendant that:
· the surface of the crossover was permeable and thus vulnerable to deterioration in the wet, thus creating a hazard which should have been observed by the third-party;
· it was the responsibility of the third-party to conduct its own assessment and maintenance of the crossover in whatever manner was necessary to ensure its safety and that it failed to comply with that obligation.
5 In considering the obligation of the third party in this instance, which in my opinion is appropriately described as involving a duty to act reasonably to give effect to the intention of the parties as evidenced by the contract, the execution of that duty must be considered in the context of the decision by the defendant to have in place a surface in an extremely high pedestrian traffic area, the nature of which:
· required maintenance due to its tendency to deteriorate;
· possessed a tendency in wet weather to accumulate water which would remain on the surface until it was absorbed through permeation, such that pedestrians using the crossover in wet weather were likely to be subjected to the danger encountered by the plaintiff; and
· possessed a history of occasioning injury by reason of the tendency of the surface to degrade;
and that the obligation of the third-party was limited to the maintenance of a surface which the defendant considered to be appropriate in all the circumstances.
6 It was the combination of those three factors which fixed the liability of the defendant to the plaintiff.
7 Although there is no evidence as to this issue, even if it might reasonably be inferred that the third-party through its history of inspecting and maintaining the crossover was aware of the presence of the first of the two factors listed above, it could not be inferred that it was aware of the third.
8 In fact it is not an issue that at no time did the defendant inform the third party of any safety issues which arose by reason of the condition of the crossover.
9 No evidence was adduced as to:
a. when last prior to the plaintiff’s injury the most recent inspection by the third-party of the crossover took place;
b. when last prior to the plaintiff’s injury maintenance works were carried out by the third-party upon the crossover; or
c. the weather patterns and level of rainfall during the period between whatever time the third-party inspected the crossover before the plaintiff suffered injury and the time at which the injury was occasioned.
10 It is clear that the porous surface of the crossover and its ability to disburse water which accumulated on it with the passage of time gave rise to the possibility that a surface judged to be unsafe when water had accumulated on it in the opinion of a reasonable observer such as Mr Percy, might equally be judged by a reasonable observer such as Mr Corea to be safe in the absence of the accumulation of water upon it.
11 Essentially, in closing submissions the defendant failed to draw my attention to the presence of any probative evidence upon which a finding by reason of the presence of direct evidence, or the drawing of an appropriate inference, could be made against the third-party in absence of the knowledge of the third-party of the combination of each of the synergistic factors which gave rise to the presence of the danger which was responsible for the injury sustained by the plaintiff.
12 In making that statement I do so taking into account the fact that there is simply no evidence available to me as to whether the third-party:
(i) during the period between the commencement of the contract in January 2009 and the plaintiff’s injury in August 2010 had ever inspected the crossover when water was lying on it;
(ii) was aware or should have been aware of the danger which arose as presented to pedestrians employing the crossover when water had accumulated on the surface of the crossover;
(iii) was aware or should have been aware that depressions in the surface of the crossover which appeared not to be unsafe or to be reasonable when the crossover was dry might in fact become unsafe or dangerous when their presence was masked by water;
(iv) had ever been called on to repair or maintain the crossover to address problems with the surface of the crossover in the context of the awareness of the danger identified by Mr Smith;
(v) had ever perceived, or for that matter unreasonably failed to perceive, the potential for danger associated with the crossover or had failed to notify the defendant of the existence of such a potential;
(vi) was ever aware that the tendency of the surface to degrade with usage or weather, or that such degradation had occasioned or was likely to occasion the potential of injury to persons using the crossover; or
(vii) was aware of the vast numbers of people who made use of the crossover on a daily basis.
13 Given the absence of any probative evidence as to any particular failure by the third-party to act reasonably to give effect to the intention of the parties under the contract, for the reasons which I have set out above and particularly taking into account:
(i) the apparent safety of the crossover had an inspection been undertaken within the week preceding the date upon which the plaintiff suffered injury in circumstances in which water was not lying on the surface of the crossover; and
(ii) the potential for that situation to change so that a danger arose but was maintained only for the period which it took for the water to permeate the crossing;
I am not satisfied that the evidence establishes that the third-party at any time failed in some way to do what was reasonably expected of in undertaking its duty to maintain the crossover, and in particular that its failure to identify and eliminate the risk which caused the plaintiff’s injury, involved a breach of the duty of care which the third-party owed to the defendant.
14 It follows for the reasons set out above that:
(i) I am not satisfied that the defendant has established liability against the third-party in this instance; and
(ii) I will make an order that the third-party proceeding be dismissed and I will hear the parties as to costs.
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