Small v Small

[2002] TASSC 31

[2002] TASSC 31

CITATION:                 Small v Small [2002] TASSC 31

PARTIES:  SMALL, Jiye
  v
  SMALL, Barry Charles

SMALL, Wendy Christine
LEE, Kevin Shane Ira

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  792/1999
DELIVERED ON:  23 May 2002
DELIVERED AT:  Hobart
HEARING DATES:  9 April and 13 May 2002
JUDGMENT OF:  Master S J Holt

CATCHWORDS:

Limitation of Actions - Extension of time - Arguable case - Prejudice - Explanation for delay - Exercise of discretion.

Wrongs Act1954 (Tas), s3(6).
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:  
             Plaintiff:  No Appearance
             Defendants:  C M Schokman
             Proposed Third Party:  M J Upston
Solicitors:
             Plaintiff:  Watling Roche
             Defendants:  Piggott Wood & Baker
             Proposed Third Party:  Zeeman Kable & Page

Judgment Number:  [2002] TASSC 31
Number of Paragraphs:  12

Serial No 31/2002
File No 792/1999

JIYE SMALL v BARRY CHARLES SMALL and WENDY CHRISTINE SMALL
KEVIN SHANE IRA LEE (PROPOSED THIRD PARTY)

REASONS FOR JUDGMENT  MASTER HOLT

23 May 2002

The application

1. By his writ issued 7 October 1999, the plaintiff claims against the defendants (his parents) damages for personal injuries suffered when he fell down a small outside flight of steps whilst leaving their home in the rain and the dark on 29 May 1999.  The plaintiff claims that the steps were wet, slippery, poorly lit and without a handrail.  The writ was served on 17 November 1999, but it was not until 3 December 2001 that the defendants filed their application for the issue of third party contribution proceedings, and an extension of time.  The plaintiff's solicitors were notified of the application but did not appear at the hearing to oppose it.  Originally the application was to join the former owners of the property, Mr Kevin Lee and Mrs Linda Lee and the George Town Council, however the defendants now confine their application solely to Mr Kevin Lee.  Pursuant to the Wrongs Act 1954, s3(5), the defendants had 12 months after the service of the writ to commence the contribution proceedings. It was common ground that it would be futile to give leave under the Supreme Court Rules 2000, r202, for the filing and service of the third party notice if the defendants could not also obtain an extension of time under the Wrongs Act, s3(6), which is as follows:

"3(6)  A judge, magistrate or any other person constituting or presiding over a court of competent jurisdiction, on the application of a person seeking to recover contribution under this section, may, in his discretion and subject to such conditions (if any) as he may impose, extend the period within which proceedings for recovery of contribution shall be commenced, notwithstanding that the period prescribed in subsection (5) of this section may have expired, if he is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension."

Arguable case

1. The facts presented in support of the application were as follows.  The defendants had recently purchased the house and had only occupied it for about three weeks prior to their son's fall.  The steps had been constructed whilst the house was owned by Mr and Mrs Lee.  On 24 February 1995, Mr Lee submitted an application to the George Town Council pursuant to Building Regulations 1994, for the construction of a veranda and set of steps accessing it at the front of the house. In the application which he signed, Mr Lee gave the builder's name as his own. The Local Government (Building and Miscellaneous Provisions) Act 1993, under which the Regulations were made, in s5, defined "builder" as meaning a person engaged by the owner to "manage or execute" building work or if such a person does not exist or cannot be found, "the owner". The council issued a building permit to Mr Lee on 9 March 1995. Accordingly, there is prima facie evidence that Mr Lee managed or executed the building works.  The council permit was expressed to be subject to the stairway being redesigned "so as to comply with Part D of the Building Code of Aust enclosed".  The enclosure consisting of one page only contained Table D2.13 of the Code dealing solely with "risers" (the vertical distance between each step) and "goings" (the horizontal distance between each "riser").  The flight of steps which was constructed consisted of six "risers" from ground level to veranda level and five pine steps.  The top "riser" was 10mm greater than the prescribed maximum step up and the "going" for the step immediately below that "riser" was 28mm less than the minimum width required.  Table D2.13, also provided a formula, the effect of which was the lower the "riser", the wider the "going" had to be within certain parameters.  The steps constructed did not comply with this requirement.  Finally, although it is not clear, it is arguable that the Table also required the "risers" and "goings" to be uniform throughout the flight of steps.  There was not uniformity.  Guidelines for the construction of stairways are contained in Australian Standard 1657-1992 and include the following:

·    tread surfaces shall be slip resistant;

·    "goings" and "risers" in the same flight should be of uniform dimensions within a tolerance of +- 5mm;

·    the tread width should not be less than the "going" and there should be a minimum overlap of 10mm;

·    the "nosing" of the edge of the steps should be highlighted especially where the stairs may be used in a variety of lighting conditions;

·    all stairways should be provided with at least one handrail.

None of these guidelines were met.  The tread surfaces did not contain slip resistant material; the "goings" and "risers" were not of uniform dimensions; there were gaps between some of the steps and the next "riser"; there was no "nosing" to highlight the edge of each step and there was no handrail.

1. In response to the defendants' materials, affidavits were read on behalf of Mr Lee, to the following effect.  Mr Lee is an industrial painter having no experience or skill in building or carpentry.  He contracted the works for a quoted price to a business trading as "Unique Home Improvements" who in turn subcontracted the work.  Mr Lee did not supervise the work nor issue instructions to those on site.  It was submitted on behalf of Mr Lee that as this evidence was not challenged on the hearing of the application for the issue of the third party notice, I should be satisfied that despite Mr Lee being the designated builder for the purposes of the Building Regulations, he did not play any part in the management or execution of the works.  If this was the trial of the action and the evidence was the same as it is now, I would accept the submission.  However it is not for me to decide now whether or not Mr Lee had any culpable role in the carrying out of the works.  The question is whether the defendants have been able to "demonstrate in an appropriately preliminary way the apparent viability of the action".  Williams v Minister for Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 at 508. On the face of the council's documents, Mr Lee took responsibility for the management or execution of the works in compliance with the Building Regulations.  The defendants, obviously, did not accept Mr Lee's assertion that he delegated the works in such a way as to be free of responsibility because they have not abandoned their application.  There is a factual issue and it is not appropriate for me to determine it on the limited materials available at this stage.  It should await the exhaustiveness of a trial, if the extension of time is granted.

1. On behalf of Mr Lee it was submitted that the defendants had adduced no evidence by which the plaintiff's fall might be causatively linked to the quality of the construction of the steps.  In response, counsel for the defendants referred to the report of engineer, Mr O'Sullivan, which was included in the material placed before me, and which had been commissioned on behalf of the plaintiff.  Mr O'Sullivan said that the veranda roof which covers the stairs does not prevent rain from blowing onto the stairs from the front of the house.  He said that when wet, the steps "indicated a typical problem of aquaplaning whereby during dynamic contact of the shoe sole with a wet surface there is an inability of the fluid to escape rapidly enough, resulting in a type of hydrodynamic lubrication".  He said in his summary and conclusions:

"Analysis of the incident site indicated a risk of slipping on the stairs in wet conditions and in the dark given lack of lighting over the stairs, dimensional inconsistency within the stairway, the slipperiness of the tread surface in wet conditions and lack of a handrail.  It would also appear that the stairway was inappropriately designed in terms of the relative dimensions of risers and goings.

Possible countermeasures discussed included rebuilding the stairs to allow appropriate risers and goings or at least altering the stairs so that all risers and goings are consistent, affixing bright coloured slip resistant tape to the nosing of each step, installing lighting over the stairs and a handrail."

I am satisfied that there is an arguable case that the plaintiff fell because the steps were not of uniform dimensions, were wet and slippery, dimly lit and lacked a handrail.

1. Next it was submitted on behalf of Mr Lee that any duty of care which Mr Lee had to users of the steps ended when the house was sold by him and his wife in May 1999.  It was submitted that the alleged defects, in particular, the lack of slip resistant surfacing; exposure to the weather; the lack of lighting and the lack of a handrail, were obvious matters and a builder or former owner can only be liable for injuries or damages arising from hidden defects.  The danger ought to have been apparent to the new owners and so the duty of care had passed to them by the time of the plaintiff's injury.  The duty to protect users of a building from dangers which ought to be known to, and acted upon by the occupier, is a duty owed by the occupier and not the person responsible for incorporating the hazards in the building construction process.  Windeyer J in Voli v Inglewood Shire Council (1962 - 1963) 110 CLR 74 said, at 85:

"Secondly, the obligation of an architect who designs a building and supervises the building of it is not co-extensive with the obligation of the person who afterwards occupies it. The occupier may be liable for injuries to visitors caused by pitfalls and unusual dangers on the premises, resulting from such things as unlighted obstructions, slippery stairs, unguarded openings. But an architect is not liable merely because an unwarned visitor to the building he designed comes to harm there. It is the occupier's concern, by guarding, lighting, warning or otherwise, to protect persons against unexpected dangers that are there."

1. The concept of "proximity" in considering whether a duty of care exists is not a formula but instead an expression of "the nature of what is in issue, and in that respect gives focus to the enquiry" (Sullivan v Moody (2001) 75 ALJR 1570. In the context of the causative link between negligence and the damage or injury suffered, competing or intervening negligence or other causative events are relevant. In Bryan v Moloney (1994 - 1995) 182 CLR 609, Mason CJ, Deane and Gaudron JJ said in their joint judgment, at 627:

"Ultimately, it seems to us that, from the point of view of proximity, the similarities between the relationship between builder and first owner and the relationship between builder and subsequent owner as regards the particular kind of economic loss are of much greater significance than the differences to which attention has been drawn, namely, the absence of direct contact or dealing and the possible extended time in which liability might arise. Both relationships are characterized, to a comparable extent, by assumption of responsibility on the part of the builder and likely reliance on the part of the owner. No distinction can be drawn between the two relationships in so far as the foreseeability of the particular kind of economic loss is concerned: it is obviously foreseeable that that loss will be sustained by whichever of the first or subsequent owners happens to be the owner at the time when the inadequacy of the footings becomes manifest. In the absence of competing or intervening negligence or other causative event, the causal proximity between negligence on the part of the builder in constructing the footings and consequent economic loss on the part of the owner when the inadequacy of the footings becomes manifest is the same regardless of whether the owner in question is the first owner or a subsequent owner."

1. The defendants had only occupied the house for about three weeks prior to the fall.  In the four years preceding the defendants buying the house, it is likely that Mr Lee would have known that rain could intrude under the veranda roof and the steps became slippery when wet.  It is arguable that the ability of rain to intrude making the steps slippery was a defect which Mr Lee ought to have known would be hidden to the new owners until particular weather conditions occurred.  It is arguable that Mr Lee had a continuing duty of care to those using the steps until the exposure to rain and the hazard in the wet ought to have come to the attention of the new occupiers.  It is arguable that the discharge of this duty required remedying the defect prior to sale or warning the new occupants of its existence.  There being only three weeks between the change of occupancy and the fall, I am not prepared to dismiss the application for lack of an arguable case.  In arriving at this conclusion I am conscious of the fact that the defendants have not given evidence that they were unaware of the hazard prior to the fall, but I infer that that is their intended assertion at trial, otherwise it is difficult to see how they could possibly succeed in their intended claim against Mr Lee.

Prejudice

1. The Wrongs Act, s3(6) precludes the grant of an extension where the person from whom contribution is sought to be recovered will be prejudiced in his defence by reason of the extension. Crockett v Roberts & Ors 29/1992.  As Toohey and Gummow JJ said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547:

"There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd 1966] Qd R 465 at 474:

'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice'."

1. The relevant period to be considered is the period commencing when time first began to run under the limitation legislation.  Taylor (supra) at 548 and 549. The writ was served on the defendants on 17 November 1999 and so it is only prejudice caused by delay after 17 November which is relevant. Mr Lee said that he now has lost or destroyed most of the documents relating to the renovation work, but he said that he discarded those documents "shortly after completion of the contract in about May 1999". He also says that he cancelled his household insurance, but that that occurred on completion of the contract of sale in May 1999. Prejudice, if any, arising from these matters, accordingly, arose outside the relevant period for my consideration, ie, before the writ was served on the defendants. Mr Lee also says that "Unique Home Improvements" has ceased trading in Tasmania and despite inquiries he is unable to find the people behind the business. He says that because of this he is unable to ascertain the name of the subcontractor who built the steps. The complaint is that if Mr Lee is joined as a third party, he no longer has access to potential fourth parties. The steps were completed in about April 1995 and I have no evidence by which I might infer that the situation would have been any different had proceedings been taken against Mr Lee at the time of service of the writ on the defendants, namely in November 1999.

1. This is not a case where it is likely that the outcome will be materially influenced by the recollection of witnesses.  The approved plans for the building work are still available.  Mr Lee said in his affidavit that he inspected the premises in approximately November 2001 and the "renovation work appeared to be in the same condition as when the premises was sold".  I am satisfied that no material prejudice will be occasioned by reason of the delay should the extension of time sought be granted.

Delay

1. The reason for delay is to be taken into account in the assessment of what the justice of the case requires.  Crockett (supra).  The events leading to the passing by of the limitation period are set out in detail in the affidavit in support of the application.  The defendants' insurer instructed solicitors shortly after the writ was served in late 1999.  In March 2000, the solicitors received a report from loss assessors recommending that investigations be made into the merits of claiming a contribution against the council and the previous owners of the property.  There is no suggestion that those instructing the solicitors were unaware of the one year time limit for the commencement of such proceedings.  The insurers made a conscious decision "to minimise legal expert and investigator's costs by attempting to negotiate" with the plaintiff.  The discussions were unsuccessful.  In February 2001, the insurer's solicitors again drew the question of contribution proceedings to their attention.  By then they had lost their file but they could still have obtained from their solicitors the information necessary to make an informed decision. No instructions to issue proceedings were forthcoming.  In August 2001, the plaintiff forwarded to the defendants' solicitors the engineer's report referred to earlier in these reasons.  That report said that the steps did not comply with the council permit, the Building Code of Australia or Australian Standard 1657-1992.  The engineer's opinion was plainly that the fall was likely to have occurred because of the defects in the construction of the steps already mentioned.  In October 2001, the defendants' insurers issued instructions for the further consideration of joining third parties.  Council documents were obtained shortly thereafter and the application was issued in December 2001.  Here the defendants knew almost from the start that there was merit in investigating the possibility of third party proceedings being taken against those responsible for the construction of the steps.  There was a decision to try and negotiate a prompt settlement with the plaintiff and avoid expense, rather than to investigate the merits of third party proceedings.  It is for the applicant to show that the justice of the case lies with the grant of the extension of time sought.  In considering what justice requires, the Court is entitled to take into account "every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period".  Taylor (supra) at 554. The rationales for the enactment of limitation periods include a recognition of the oppression caused to a defendant by allowing an action to be brought long after the circumstances which gave rise to it have passed. Taylor (supra) at 552 and 553.

Conclusion

1. In the circumstances of this case, I attach the greatest weight to the defendants through their insurers having elected not to investigate pursuing third party proceedings when the possibility was first drawn to their attention.  I have no reason to believe that there was any ignorance about the time limit. I consider that the injustice of allowing contribution proceedings to commence against Mr Lee where he would otherwise have the benefit of a time bar, is greater than the injustice of depriving the defendants of a potential remedy, which they chose not to pursue within the prescribed time limit.  The application will be dismissed.