Vision Aluminium 2000 Limited v McFadyen HC Christchurch Civ-2006-409-003064

[2007] NZHC 1833

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2006-409-003064

UNDER  the District Courts Act 1947

IN THE MATTER OF     an appeal against a decision of the District

Court at Christchurch

BETWEEN  VISION ALUMINIUM 2000 LIMITED Appellant

ANDRONALD ERIC MCFADYEN AND REVA TUI MCFADYEN Respondents

Hearing:         12 June 2007

Counsel:         B R D Burke for Appellant

S M Dwight for Respondents

Judgment:      12 June 2007

ORAL JUDGMENT OF PANCKHURST J

Introduction

[1]      A good Samaritan can render himself liable to pay damages.   If someone intervenes in order to render assistance to another, does so negligently such as to aggravate the previous situation, then liability can ensue.  In the District Court it was held that the present case fell into this category.  The appeal therefore raises issues concerning the extent of the duty which was assumed; whether the steps taken by the good  Samaritan  were  negligent;  whether  those  steps  aggravated  the  previous situation such as to justify an award of damages for loss caused to the recipient of the favour.

Some background

[2]      In 1991/92 a house was built at 59 McSaveneys Road.  The appellant, Vision

Aluminium 2000 Limited, supplied joinery which was used in several parts of the house including in the construction of a  conservatory to the lounge.   However,

VISION ALUMINIUM 2000 LTD V R E MCFADYEN AND R T MCFADYEN HC CHCH CIV-2006-409-

003064  12 June 2007

Vision was not retained to install such joinery.  It may be the case that the owner of the property was also the builder of the house.   In any event, I understand it is common ground that the builder went into liquidation.

[3]      The house was then sold to an intermediate buyer before, in 1994, it was sold again to the respondents, Mr and Mrs McFadyen.  The case concerns repairs which Vision voluntarily undertook in the year 2004.   It did so despite the fact that any warranty available in relation to the materials it had supplied had long since expired, being a warranty of only five years duration.

[4]      In March 2006 the McFadyens sued Vision for the replacement cost of a new lounge conservatory.   Initially they claimed $13,200 but this figure was amended upwards to $14,445 before the case came to trial.  That was in December of last year before Judge Thomas.

[5]      He heard the case on 5 December and the following day delivered a written reserved decision in which he found for the plaintiffs (Mr and Mrs McFadyen), but for a sum considerably less than they had claimed.  The Judge approached the case in a conventional fashion for one based on an allegation of negligence.   He first examined whether there was a duty owed by Vision; whether it was in breach of a duty of care or put another way, whether it acted negligently, and finally whether loss flowed from any such breach and at what level.

[6]      With reference to the first question the Judge was satisfied that although Vision was a volunteer, it was nonetheless required  to  undertake  repairs  to  the conservatory in a reasonable and tradesman-like manner.   He was also persuaded that the work undertaken was performed negligently.   Indeed, as the Judge put it, Vision “didn’t handle the process at all well”.

[7]      With reference to the loss which flowed from the repairs to the conservatory, a key issue became whether the conservatory had leaked before the voluntary repairs were undertaken.  The Judge found that the leaks were caused by the repairs; that they were not a pre-existing problem and on that basis he was satisfied that the negligence had caused loss.  He found that in order to repair the leaks and render the

conservatory water-tight it was appropriate that the McFadyens be awarded the sum of $3,000.  The Judge also awarded costs, disbursements and expert expenses which totalled $7,991.

[8]      Vision challenges this outcome on a number of grounds.   The convenient course is for me to turn to those grounds immediately and deal with them in turn.

An erroneous finding, or a failure to make a finding, as to when the leaks occurred

[9]      As I have already noted this was an important issue in the case.  If the lounge conservatory leaked only after Vision’s involvement, then it had aggravated the pre- existing problems and legally it was answerable for that aggravation.  If, on the other hand, the conservatory had leaked before Vision became involved, then there was essentially no change to the situation; no loss had been  cause;  a volunteer had intervened, but to no effect.

[10]     Judge Thomas resolved the matter in this way:

It behoves me now then to look at the issue as to when the leaks occurred. Mr Burke produced through Mr McFadyen a letter dated 17 October 2005 which he suggested indicated there had already been leaks to the front conservatory prior to the replacement of the opaque  glazing.    This was refuted by Mr McFadyen.  The letter also refers to the other efforts in respect to the skylight and the kitchen conservatory.   In my view Mr Burke’s contention cannot be sustained.  Mr McFadyen wrote the letter and I accept what he says he was talking about.  It follows the only evidence about leaks in this front conservatory is from Mr McFadyen to the effect that the leaks did not commence until after the defendant replaced the double glazing.  It follows therefore that the leaks were caused and contributed to by the defendant company and its negligence.

[11]     Mr Burke, on behalf of Vision, challenged this factual finding.  He did not shrink from the difficulty of challenging a finding of fact in an appellate context. But he argued that this was one of those comparatively rare occasions when an appellate court should intervene and overturn a primary finding of fact made by a Judge  at  first  instance.     The  letter  to  which  the  Judge  referred,  written  by Mr McFadyen after the repairs had been effected, included a sentence which began “The conservatory windows have been leaking since the house was built”, being

over 10 years previously.  Counsel argued that this sentence, read in the context of the letter as a whole, clearly conveyed that the leaking problem was one of long- standing.  Moreover, my attention was drawn to evidence given by Mr McMullan, a senior employee of Vision, who had inspected the conservatory, observed that the overhead glass panels had moved from their intended fixed position and that thereby there were gaps which would inevitably occasion leakage.

[12]     Ms  Dwight  on  the  other  hand  supported  the  finding  of  the  Judge. Mr McFadyen had been closely cross-examined concerning the contents of the letter. He remained adamant that the reference to a conservatory was not a reference to the relevant  lounge  conservatory  but  to  other  overhead  windows,  also  supplied  by Vision for another part of the house.   As is apparent from the section I have just quoted,  the  Judge  accepted  this  evidence.    Ms  Dwight  submitted  I  should  do likewise.

[13]     She drew attention to other features of the evidence.   These included that there was no express complaint made to Vision about leaks to the conservatory before the repairs were effected.   By contrast, Mr and Mrs McFadyen had complained, vehemently, about leaks to other areas of the house and so, it was said, complaint would have been expected about the conservatory before 2004, if indeed it had leaked.

[14]   With reference to Mr McMullan’s evidence, counsel submitted that he acknowledged he had not observed evidence of leaking in the form of damage within the conservatory, despite his opinion that there were gaps which would have led to it. I was also reminded of the Judge’s observations in the balance of paragraph [17] where he said:

Indeed, there is some factual acknowledgement of that by the efforts they made in their continuing visits to assist with the use of copious quantities of silicone and the eventual construction of a second and unsightly guttering. These efforts may well even have also exacerbated the structural defects which the experts have agreed upon.

This passage, it was said, referred effectively to an admission by conduct in that

Vision  had  on  a  number  of  occasions  returned  to  the  McFadyen’s  home  and

endeavoured to make good the leaks to the conservatory area after the initial repairs were effected.   Hence, it was said, Vision’s conduct suggested that the company must have accepted at the time that the leaks only began following the repairs.

[15]     Finally, Ms Dwight drew attention to the basis or reason given by Mr and Mrs McFadyen for involving Vision in the first place.   She said this was not on account  of  the  conservatory  being  less  than  weather-tight,  but  rather  that  the overhead glass units (which were double-glazed), had turned opaque.  In other words the glass had failed, possibly because this was a bad batch of glass supplied to Vision to construct the units in the first place.   There was, therefore, a reason for Vision’s initial involvement, other than leakage.

[16]     Hence,  on  the  basis  of  the  Judge’s  credibility finding  and  these  various aspects of the evidence, I was invited to the view that there was a sound basis for the conclusion which Judge Thomas reached.   In short, that it was not a situation appropriate for appellate intervention in relation to a factual finding.   I accept this argument.   First of all a finding was made as to when the leaks occurred.   In paragraph [17] the Judge clearly accepted Mr McFadyen’s evidence as to time.

[17]     Secondly, I am satisfied that on all of the evidence the finding which was made was available.   It would therefore be wrong for me to interfere sitting on appeal.  It follows that the case is to be approached on the basis that the conservatory was water-tight before the repairs were effected;  that Vision assumed an obligation to replace window panes which had become opaque and thirdly, that because of the negligent performance of that work, they did aggravate the existing situation, in that leakage occurred thereafter.

What was the extent of the duty assumed by Vision?

[18]     Mr  Burke  argued  that  not  only  was  Vision  a  volunteer  but  that  it  had expressly assumed a limited duty to effect temporary repairs which may not successfully cure the problems.   Counsel argued that the Judge lost sight of this dimension when he approached the question of loss and assessed damages.

[19]     At paragraph [14] Judge Thomas broached the issue of the extent of the duty which Vision had assumed.  He said this:

If one takes Mr McMullan’s evidence at face value then they had also known about the construction defects which could contribute to leaking and they took on their obligation in that knowledge.   It is clear that Mr McFadyen thought that their efforts were merely a temporary measure and that a proper job would be completed by the defendant.   I am satisfied on the evidence before me that there was no such obligation on the part of the defendant to assist the plaintiffs to that extent.  However, they had a duty to install the glass properly.   When they kept trying to remedy the leaks they incurred further obligations in the efforts up to and including the installation of the second and unsightly gutter.

[20]     I confess this paragraph has caused me some concern.  The second sentence appears to have a negative absent from it.  It would make sense if the Judge had said that Mr McFadyen thought that Vision’s efforts were “not”  merely a  temporary measure.   But if that is so, the following or third sentence becomes difficult to understand.   This is because the Judge said that he was satisfied there  was  no obligation on Vision to assist the defendants to “that extent”.   What he meant by “that extent” is unclear.  Ms Dwight argued that it must have been a reference back to the first sentence in the paragraph where the Judge referred to Vision’s knowledge of structural defects.  Hence, counsel submitted, what the Judge was meaning by the third sentence was that Vision assumed responsibility to properly replace the glass panels, but not a duty to deal with structural defects.

[21]     On reading the judgment as a whole I think that one is led to this conclusion. The Judge’s approach was that first he found there had been no leaks prior to the repair job.  He viewed the involvement of Vision as limited to replacing the opaque glass.  However, once they did so negligently by seeking to reuse the original rubber beading and by not affixing securing clips to the glass, their duty became a larger one.  The newly fitted glass was able to move, and did so, slipping downwards and giving rise to a problem in relation to the gutter.   Therefore, in due course about three months later, Vision returned and attempted to effect some repairs to the gutter as well.

[22]     I think Ms Dwight was right in her further submission that the question of repairs amounting to only a temporary measure arose from the evidence relevant to

affixing the second gutter.  This was fixed beneath the original gutter to the front of the conservatory.  The original gutter was left in place.  Holes were drilled in it to allow the water to escape from the original gutter to the second gutter.  However, even this didn’t work because the glass panels had slipped downwards.  There was only restricted access available to the first gutter.   It could not be cleaned.   With leaves and debris in it, water could not escape to the second gutter and the resulting overflow was able to enter the conservatory itself.  As I say, I am in no doubt that this was the aspect which gave rise to evidence about a temporary measure.  Once the Judge accepted that the second gutter had exacerbated the leakage problem, then, inevitably, he found that it was for Vision to make good this negligent work, just as it was responsible to make good a proper fixing of the newly installed glass panels.

[23]     I agree with his approach.

The quantum of damages

[24]     As noted the Judge awarded a round figure of $3,000 by way of damages.  It is clear that the award was based upon evidence given by Mr Gant, a building technical manager called by Vision as an expert.  He said that to properly affix the glass panels to the conservatory roof would cost about $500.  To reinstate the old type of gutter to the conservatory would cost a further $700.

[25]     Mr Burke argued with reference to these figures that the appropriate award of damages, if any, should be of the order of $1,200.  However it is apparent that the Judge did not use these figures in arriving at the $3,000 award.

[26]     Mr Gant also gave evidence to the effect that if the conservatory was to be made water-tight, additional work was required.   He considered that new glazing bars needed to be fixed, a new type of gutter (of an external design) was required and further new glass panels (longer than the original replacement ones) were also necessary.  Thereby properly fixed glass panels would result and of a length which did not compromise the gutter being of a new external design.  Mr Gant estimated that the cost of this work would be about $2,700.  I am sure that the Judge rounded that figure up to $3,000 in order to arrive at the award he made.

[27]     Was the Judge wrong to approach the assessment of damages on this basis?  I do not think so.  Vision did set out initially to merely replace opaque glass in the conservatory roof.   At that point the conservatory was weather-tight.   The Judge made a finding to that effect and I see no basis to disturb it.

[28]     The newly fitted glass was not fixed properly.  It could move downwards and in doing so the operation of the internal gutter was compromised.   When this, in association with the ill-fitting panes of glass lead to leakage, Vision returned and endeavoured to fit a secondary gutter underneath the existing internal one.   To do this they had to not only drill holes in the original gutter but also cut the side of it. Even so, however, a leakage problem continued because the second gutter performed no effective function and leakage from the blocked original gutter continued.

[29]     Against this factual background I am satisfied that the Judge was entitled to conclude that $3,000 was the appropriate figure for damages.  In short, this was the expenditure required to render the conservatory water-tight again.

Did betterment result?

[30]     Mr Burke argued that an award of $3,000 represented the amount needed to fit further new glass to the conservatory roof and to install a totally new and superior exterior gutter system.   This, he suggested, should have been recognised by the Judge and should have produced a reduction in the award because of the element of betterment.  I disagree.

[31]     It may well be the case that Mr and Mrs McFadyen, with the expenditure of the $3,000, would have a better roof system over the conservatory.  They would have not just new glass in lieu of the old opaque panes, but a new gutter system as well. But that in my view is of Vision’s making.  It was their negligence in fitting the new glass on the first occasion which compromised the internal gutter system and occasioned the need to effect what was seen as temporary repairs to it.  But as I have already explained, these did not work and the problem of leakage continued.

[32]     In these circumstances it seems to me that the Judge had no option but to assess damages based on a new and improved system which would water-proof the conservatory roof.   Anything less would have meant that Mr and Mrs McFadyen continued to have a problem not of their making, but caused by Vision in seeking to replace the opaque glass.

Was the award of costs excessvie?

[33]     The Judge dealt with costs in this manner:

[21]     In the circumstances, there is judgment for the plaintiffs against the defendant for the amount of $3,000.00.   Costs must follow the event but given the level of this judgment and the nature of the claim I fix costs at scale 1B.   The plaintiffs are entitled to the costs of their expert witness Mr Milsom and disbursements as fixed by the Registrar.   This is not an appropriate case to award interest.

The actual calculation was as follows.   The Registrar allowed costs in the sum of

$5,931, disbursements of $950 and expert expenses of $1,110 to give a total of

$7,991.

[34]     Mr Burke advanced a number of submissions to the effect that the costs award was unprincipled and excessive.  He said it was inappropriate of the Judge to fix costs without calling for submissions from counsel.  As a result the figure arrived at, with the involvement of the Registrar, was one which was out of all proportion to the $3,000 award.  Moreover, said Mr Burke, this was clearly a case which properly fell within the jurisdiction of the Disputes Tribunal (where the jurisdictional limit is

$7,500).  This circumstance indicated that it was a case where no award of costs may well have been the appropriate outcome.

[35]     Then counsel drew attention to elements of the $5,931 costs calculation.  This included amounts for a settlement conference and for discovery and inspection of documents which, it was argued, were inappropriate.

[36]     I prefer to deal with this aspect of the level of principle rather than detail.  In my view the amount of the plaintiffs’ claim, $14,445, was unrealistic.  It was based upon total reinstatement of the conservatory, or put another way, a total rebuild of

the conservatory.  I think it was unreal to claim against Vision, a volunteer, on this basis.  If anything the award of $3,000 may be on the generous side.  But even at that level the award demonstrates that the case was one which should have been before the  Disputes  Tribunal.    I  am  therefore  satisfied  that  the  submission  made  by Mr Burke that the award is out of all proportion to the success achieved by the plaintiffs is correct.

[37]     In my view the appropriate approach to an unusual case of this kind would have been to fix a global contribution towards costs and disbursements.  I do so and allow a figure of $3,000 in lieu of the figure allowed in the District Court.  In other respects, save as to costs, the appeal is dismissed.

[38]     I have heard counsel briefly with reference to costs in relation to the appeal. In my view costs should lie where they fall.   That reflects my assessment of the result achieved by the then plaintiffs in the District Court and my view that the case was one which should have been before the Disputes Tribunal in the first place.  On

balance, I am of the view that no award in this court is appropriate.

Solicitors:

Harmans Lawyers, Christchurch for Appellant

Cavell Leitch Pringle & Boyle, Christchurch for Respondents