Quadrant Research Services Pty Ltd v Dessmann & Anor [2004] HCATrans 184 (28 May 2004)

--

Quadrant Research Services Pty Ltd v Dessmann & Anor [2004] HCATrans 184 (28 May 2004)

Last Updated: 8 June 2004

[2004] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney Nos S398 and S399 of 2003

B e t w e e n -

QUADRANT RESEARCH SERVICES PTY LTD

Applicant

and

NADIA CAROL DESSMANN

First Respondent

TREVOR R. HOWSE & ASSOCIATES PTY LTD

Second Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 11.08 AM

Copyright in the High Court of Australia

MR J.B. SIMPKINS, SC: If your Honours please, I appear with my learned friend, MR R.D. NEWELL, for the applicant in both matters. (instructed by Philips Fox)

MR P. MENZIES, QC: If your Honours please, I appear with my learned friend, MR K.W. ANDREWS, for the first respondent. (instructed by McGrath Dicembre & Co)

MR I.H. BAILEY: If your Honours please, I appear for the second respondent in both matters. (instructed by Minter Ellison)

GLEESON CJ: Let us get it straight, Mr Simpkins, the, what I will call a flow-on proceedings here, if your application for special leave to appeal fails what are the consequences of that in terms of the other claims?

MR SIMPKINS: I am not too sure what your Honour refers to as the “other claims”.

GLEESON CJ: There was an action between Ms Dessmann and Quadrant and then there was a claim against Trevor R Howse and Associates. We are just dealing at the moment with your application in relation to the claim against your client by Ms Dessmann.

MR SIMPKINS: Yes, your Honour. I think the only thing I can usefully say is this, that there was a claim brought, apparently out of time, by Ms Dessmann against Trevor Howse and Associates.

GLEESON CJ: I know, but there is a claim by Quadrant against Trevor Howse and Mr Bailey is here representing Trevor Howse. What happens to Quadrant’s claim against Trevor Howse if your application against Dessmann fails?

MR SIMPKINS: Your Honours need not trouble about it.

GLEESON CJ: Thank you.

MR SIMPKINS: Your Honours, if the judgment of Justice Einstein in the Court of Appeal is correct, in our submission, it would establish a general obligation on occupiers to supervise independent contractors even when those independent contractors are carrying out work which is not inherently dangerous or exposing those in the vicinity to a risk. Moreover, the general proposition could also be established, in our submission, that in order to avoid liability for any injury caused by such an independent contractor, the onus would be upon the occupier to demonstrate that the occupier had selected the independent contractor carefully.

Your Honours, may I turn in the joint application book to page 146 where his Honour Justice Einstein deals with the way in which the particular duty that he found - - -

GUMMOW J: Explain to me why we have got two leave applications.

MR SIMPKINS: Because there were two separate appeals to the Court of Appeal.

GUMMOW J: Why was that?

MR SIMPKINS: That I cannot immediately explain, your Honour.

GUMMOW J: I could not find out why either. Yes, go on.

MR SIMPKINS: Yes, your Honour. At page 126 of the joint application book his Honour Justice Einstein turns to address what the nature of the duty is. In particular, he turns to consider whether there is an obligation on the part of an occupier to supervise. His Honour starts off at paragraph 61, saying, in our submission, correctly enough:

Whether or not a duty to ensure adequate supervision of particular works arises in a particular occupier will always depend upon the particular circumstances.

So that general proposition we do not cavil with, but when your Honours then read the balance of the paragraph to see what are the circumstances here which enliven the duty to supervise, his Honour says, at about line 34 on the same page, that those circumstances are the establishment of the “position of the occupier”, the fact of “the defective nosings, the nature of the stairs”, whatever that might be intended to convey, and “the fact of the recent works”. All of these things in combination, according to his Honour, result in the duty to take reasonable care imposed upon this occupier being fulfilled, or capable of fulfilment, only by an obligation to supervise what is essentially straightforward work, namely the work of carpet laying.

The actual finding of the duty seems to be at page 124, at about line 51, where in finding the applicant negligent, his Honour refers, in the first bullet point, to what is described as:

the duty of the occupier here to appoint a competent person to supervise the laying and installation of the new carpet.

If we understand the judgment correctly and if what his Honour has done is to impose the obligation to supervise based on the conglomeration of circumstances that I have directed attention to in his Honour’s judgment, the judgment of the Court of Appeal would seem to be inconsistent with the South Australian authority that we referred to in the written submissions and which we included on our list of authorities.

This is the case of Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and Henry. That was a case where one of the parties, namely Adelaide Brighton Cement, described in the judgment as “ABC”, was contracted to carry out maintenance work. It arranged for some scaffolding to be erected by Complete Scaffold Services and the allegation was that the obligation of Adelaide Brighton Cement was, in fact, to supervise the scaffolder. The conclusion of the South Australian Full Court, paragraph 38 of the judgment, was that there was no duty to supervise the independent contractor.

One of the curiosities of the judgment of Justice Einstein is that it does not disclose the process of reasoning that his Honour has gone through to move from the general proposition that the duty of an occupier is expressed accurately as a duty to take reasonable care to avoid the risk of harm to entrants to the higher duty that this could only be satisfied on the facts by a duty to supervise. If his Honour is correct, it would seem to follow that everywhere where carpet is laid the occupier must supervise the carpet layer unless there is evidence that the occupier can adduce, which demonstrates that the carpet layer was selected with appropriate care.

Precisely what that would mean in any particular circumstance one does not know. Does it mean that one has to inquire about the nature and extent of experience of carpet layers? Beyond the particular factual circumstance, of course, there are many other activities like doing activities where, if this general proposition is correct, prima facie, there is an obligation to supervise the independent contractor, the builder.

So the first general leave question that we submit would arise and in relation to which we seek to appeal is a question related to the nature and extent of an occupier’s duty. Our contention is that the duty is expressed as a duty to take reasonable care in the circumstances for the safety of the entrant. There may be instances where that duty requires supervision. Where the work being carried out is not inherently dangerous work, in our submission, the duty does not require supervision and the Court of Appeal were wrong, in our respectful submission, in holding that there was this obligation to supervise the work of the independent contractor, in this case the carpet layers.

The related point that I opened on was that his Honour Justice Einstein, also seems to have concluded that in order for the occupier to avoid liability in circumstances where an independent contractor is retained to carry out work, the onus of proof lies upon the occupier to demonstrate that the selection of the independent contractor was made with appropriate care. This, in our respectful submission, seems to be predicated upon there being some non-delegable duty on the part of the occupier rather than a general standard requiring reasonable care in selection.

In relation to this question of onus, Justice Einstein found that the carpet layer’s negligence caused the accident. He did so, it would appear, from the evidence that his Honour sets out in the joint application book at page 120. Mr Dwyer was the project manager for Trevor Howse who were retained to look after the building refurbishment works that were taking place. He gave the evidence set out in the question and answer at the joint application book at page 120. His Honour has underlined part of the evidence and described the evidence as very important.

If I could digress for a moment, one of the other grounds upon which we seek special leave is that in deciding that the negligence was that of the carpet layer rather than that of the builder, his Honour Justice Einstein reversed a finding of the trial judge¸ and could I just digress momentarily to deal with that aspect. The trial judge found that the relevant negligence was that of the builder. This appears at the joint application book, page 68, at about line 22. He says:

I find that Bianco -

that is the builder -

failed to completely fix the nosings and this defect was observed by Mr Dwyer on the 20^th October.

The significance of that factual finding, that the negligence was that of the builder, is that there was a contractual arrangement between my client, the applicant, and Trevor Howse and Associates pursuant to which Trevor Howse and Associates were supervising the works carried out by the builder. So if there was an obligation to supervise it was discharged or at least, on the submissions made to the trial judge and to the Court of Appeal, it was discharged by the retainer of Trevor Howse and Associates.

There was evidence before the trial judge of the specification in the building contract, this is at page 53 of the joint application book, page 17 of the judgment, and at about line 41 her Honour records:

The description in the agreement of the work to be done on the stairs -

by Bianco -

was “Fit new aluminium and rubber nosing to existing stair carpet”.

So the specification of the contract required Bianco to place these nosings and the discovery of the inadequate placement of the nosings was made by Mr Dwyer, the project manager of Howse. He then assumed responsibility for remedying what he observed and he instructed Bianco to attend to this defect so what happened when the defect was discovered, prior to the accident that caused the injury, was that both Trevor Howse, the project manager, and the builder acted as if this work was the subject of the contract between them and the placement of the nosings form part of what the builder was to do. So a finding of the trial judge that the builder was responsible, supported by evidence that the builder was responsible.

His Honour finds that the negligence was that of the carpet layer, and this is at pages 125 to 126 of the joint application book. In finding as he did, his Honour gives no reasons at all for controverting the finding of the trial judge. The authorities in this Court are clear. The finding ought to be respected unless it was glaringly improbable. His Honour gives no reasons for reaching that conclusion. He merely comes to a different conclusion in circumstances where the only arguable basis for it is the evidence of Mr Dwyer, being the evidence that I directed the Court’s attention to before.

The trial judge obviously saw Mr Dwyer and was able to give consideration to what she thought of him as a witness and in the joint application book, in her judgment, at pages 55 and 56, she found that he was effectively a core witness whose recollection had to be derived largely from documents. Her Honour had the advantage of seeing Mr Dwyer. Justice Einstein clearly did not. So our submission in relation to this ground of appeal is that the Court of Appeal controverted the factual finding of the trial judge in circumstances which, on the authorities, demonstrate, in our respectful submission, ought not to have been done.

In relation to the facts as found by Justice Einstein, however, his Honour found, as I indicated a moment ago, that it was the carpet layer who was negligent. That gave rise to this difficulty, that we have Trevor Howse and Associates superintending the building works but not the carpet laying works, so if one postulates the carpet layer being negligent it is then necessary to inquire into the nature and extent of any supervision and also to inquire into, if it is raised, what the process of selection was.

The liability which was found in relation to the carpet layer’s work is found for the reasons given at page 126. His Honour says, in paragraph 62, that the plaintiff, that is Ms Dessmann, succeeds for two reasons and he puts them in bullet-point form: firstly, Quadrant arranged for the carpet layer; secondly, the accident occurred as a result of the negligent work of the carpet layer. There is no finding that we negligently selected the carpet layer and, indeed, the evidence did not permit any finding to be made as to whether or not the carpet laying selection was negligent, or otherwise. It was completely factually neutral.

In relation to onus, in particular, his Honour, at page 125, in paragraph 59 addresses the argument that we advanced to the Court of Appeal that it was not for us to demonstrate that we had selected with care, of this being a case brought in negligence, the duty of care being one on the part of Quadrant to take reasonable care as an occupier for the safety of entrants. It was the plaintiff’s onus to prove, if it was desired to be established, that the retainer of the carpet layer was negligent. His Honour says, in paragraph 59, page 125, at the end of the paragraph:

Quadrant face at least an evidentiary onus to prove that Auction Centre Ltd was a competent carpet layer.

Although his Honour refers to it terms of an “evidentiary onus”, it is plain, when one considers the judgment, in our submission, that his Honour is talking about a legal onus. In order to defend the claim there is an obligation on the part of the occupier to demonstrate that there was care in selection.

After the judgment in Dessmann, the Court of Appeal in an unreported decision that is not on our list, but copies of which I have, if the Court would be interested, in Nambucca Shire Council v Revell, delivered on 17 December, 2003, relied upon the decision under attack on this application for the proposition that it was for the occupier to prove that it took reasonable care in selection and supervision and to lead evidence about that matter. So apart from the conclusion, in our submission, one would draw from the Court of Appeal’s judgment in this case it has been followed by a differently constituted court and regarded as authority for the proposition that the onus is on the defendant occupier to demonstrate that there was care in selection.

Your Honours, they are essentially our submissions in relation to the leave questions. Firstly, his Honour controverted the finding of facts which was not shown to be glaringly improbable without giving reasons for it. Secondly, that he found the duty to supervise out of facts which did not justify that conclusion and which, if they did justify a conclusion, in every case that an occupier has a duty to supervise and, thirdly, that his Honour erred in imposing an obligation upon an occupier to actually lead evidence itself in order to defend a claim brought against it to the effect that it had selected an independent contractor with reasonable care. If the Court pleases.

GLEESON CJ: We do not need to hear you, Mr Menzies or Mr Bailey.

The outcome of these proceedings in the Court of Appeal of New South Wales turned mainly on the particular facts and circumstances of the case. The matter does not raise an issue suitable for grant of special leave and we are not persuaded that the interests of justice require such a grant. The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 11.28 AM THE MATTERS WERE CONCLUDED