DRUMMOND AND ROSEN PTY LIMITED v EASEY & ORS [2009] NSWCA 74 | Case summary

Thursday 16 April 2009 DRUMMOND AND ROSEN PTY LIMITED v BARRY EASEY & 3 ORS Judgment 1 TOBIAS JA: I agree with Handley AJA. 2 MACFARLAN JA: I agree with Handley AJA. 3 HANDLEY AJA: On 9 March 2002 Barry Easey, the first respondent (the plaintiff), slipped and fell on a tiled ramp giving access to the Miller Shopping Centre. It was raining lightly and the plaintiff fell on an exposed area where the tiles were wet. He sustained significant injuries to his left elbow, left shoulder and buttocks for which he was later awarded damages of $304,792. 4 He sued the owners and occupiers of the shopping centre (the owners) who joined the builder, Grosvenor Constructions Pty Ltd, as a cross defendant on a claim for contribution or indemnity. The plaintiff then joined it as an additional defendant. 5 The builder filed a cross claim seeking contribution or indemnity from Drummond & Rosen Pty Ltd (the architects) who had prepared the plans and specifications for the refurbishment of the Centre. The work included the re-tiling of the level public areas and the four means of entry to the Centre including the ramp in question. 6 The plaintiff then joined the architects as an additional defendant, and the owners also brought a cross claim against them for contribution or indemnity. 7 In its amended cross claim the builder alleged that the architects had "selected, specified, supplied, and directed" the tiles that were laid on the ramp on which the plaintiff slipped. 8 The owners' cross-claim alleged that the architects had selected tiles that were not fit for the purpose of being laid on an access ramp exposed to the weather, and had failed "to check and ensure" that the tiles complied with the provisions of the relevant standard AS/NZ/4586-1999. 9 The trial judge (Quirk DCJ) accepted the evidence of Mr Adams, the expert called for the plaintiff, and Mr Stephenson, the expert called for the owners, which was uncontradicted. She found that the tiles on the ramp where the plaintiff slipped were "inadequate and [not] suitable for the ramp". 10 The builder and the architects did not call any employee or partner who had been involved in the construction phase of the refurbishment. 11 The Judge found that all defendants had been negligent by "failing to ensure that the tiles were adequate and safe". The negligence of the builder and the architects lay in "the failure to ensure that the tiles selected by [the architects] and laid by [the builder] were adequate and safe." 12 She also found that the architects had selected the tiles, knew of the relevant standards, and failed to have the tiles tested although they knew that the ramp was steeper than usual. The builder was responsible for the laying of the tiles and had a separate obligation to ensure that they were safe and complied with the relevant specifications and standards. 13 Liability was apportioned 50% to the owners, 30% to the architects and 20% to the builder. The judge rejected the defence of contributory negligence and entered judgment for the plaintiff against all defendants for the damages assessed, with appropriate verdicts on the cross claims. 14 The architects have appealed against the finding of negligence against them, but did not challenge the finding on contributory negligence, or the assessment of damages. There has been no other challenge to any of her Honour's findings in this complicated and difficult case. 15 The Judge found that the ramp on which the plaintiff fell was steeper than the maximum recommended grade of 1:14 under the Australian Standard for pedestrian surfaces. She found that it was closer to 1:12 and although this was not in itself a breach of duty to pedestrians it was relevant in determining the rating of the tiles that should have been used. Mr Adams' evidence was that they should have been R12 for high slip resistance but were only R10. 16 The tiling on the ramp was completed in about June 2001, approximately 9 months before the plaintiff fell, and the ramp was then open for use by the public. 17 The architects had a limited role in the refurbishment of the shopping centre defined in their submission to the owners dated 11 October 1999 (tab E). Phase 2 "Design Development and Building Construction Certificate Documentation" included: "c) Preparation of colourboard, schedule of finishes and provision of relevant samples to illustrate concept. d) Preparation of building specification in conjunction with the working drawings." 18 Phase 3 "Project Construction Documentation" included: "c) Final selection of finishes and colours". 19 Phase 4 "Quality Control" included: "c) Inspection of the works for verification that the works were executed in general accordance with the documents prepared by us. Verification and quality control will be based only on a visual inspection of the works and our responsibility will exclude any matters not readily apparent on a visual inspection." 20 The submission concluded with the following "Note": "Administration of any Contract including Progress Certificates, Practical Completion Certificate, variation, costs and extensions of time shall be handled by others." 21 The architects' specification for the tiling work (tab S) dated 22 February 2000, received by the builder on 6 March, relevantly provided: "3.1 Data Submissions Requirement Before installation commences, obtain and submit the following data: - Manufacturer's Data: the Manufacturer's Published Product Data, including technical specification; and recommendation for installation. - Product Warranties: the Manufacturer's written statement identifying the particular use within this project, and certifying that the product supplied complies with the specification and is suitable for the intended use … 3.2 Samples Requirement Submit loose samples of the following and gain approval of same prior to placing of orders: Tiles: each type of tile and accessory specified, illustrating the extremes and average of the ranges of properties available in tiles complying with the Specification. 3.4 Ordering Requirement Order tiles in time to avoid delay to the construction program. Allow sufficient time for importation of tiles required to be ordered from overseas. 5.1 Tiles Generally Criteria Tiles shall … comply with all requirements of, and shall exceed the minimum co-efficient of friction (slip resistant) values for wet and dry surfaces to AS 3661 Part 1. Ceramic tiles To AS 3958 … for surface quality, physical … properties relevant to the product type. 5.3 Spare Tiles Requirement Provide spare tiles for future replacement purposes, matching each of the tile types specified, in the quantities specified below: 22 The architects had no role in the administration of the building contract which identified the project manager, Summit Projects Australia Pty Ltd, as the Architect (T day 2, 64) and Byvan (NSW) Pty Ltd as the Centre manager (tab T). 23 Exhibit K included the relevant Australian Standards. Figure 2 in AS/NZS 3361 required a co-efficient of friction of .5 on sloped surfaces with a gradient of 8 degrees (1:12). AS/NZS 4586 of 1999, which originated as part of AS 3661 of 1993, required (table 2) pedestrian surface materials which could become wet to be Class V to achieve a "very low" contribution to the risk of slipping, or Class W to achieve a "low" contribution. 24 Table 2 of HV 197:1999, prepared "to assist in the use of AS/NZS 4586:1999", required surface materials when wet to have classifications V with a BPN rating of greater than 54 for a very low contribution to the risk of slipping or with a BPN rating between 45 and 54 for a low contribution. 25 Table 3 showed "minimum" classifications of V and R11 for external ramps. A higher classification was required if the ramp could become wet. Appendix A stated: "for a kerb ramp when the slope is greater than 1 in 14 [as it was at this site] specify the next highest classification." 26 The minutes of the site meeting of 10 January 2001 record the presence of representatives of the builder, the project manager and the centre manager. Mr Bob Higginson from the architects was included in the distribution list but was not recorded as being present. Item 4.23 under Architecture recorded: "Outside Paving - BH submitted tile samples for areas that cannot take specified Urbanstone. SPA and Byvan approved samples. GC to advise cost savings". 27 SPA were the project managers. The Minutes do not record the submission of manufacturer's data or product warranties for the tiles (cf specification para 3.1). There is no reference to any written material showing that the samples exceeded the minimum co-efficient of friction values to AS 3661. 28 The minutes of 7 March 2001 record the presence of Mr Higginson and representatives of the builder and the project manager. The text of item 4.4 was identical with that for item 4.23 in the minutes of 10 January which suggests that nothing presently relevant had occurred since the earlier meeting. 29 On 30 January 2001 the builder sent a fax to ABC Commercial Tiling (the tiler) as follows (tab V): "Grosvenor Constructions is currently constructing above project. The attached pavement areas have been nominated as Glennon tiles in lieu of Urbanstone. Detail as follows: Glennon tiles size 300 x 300 Type of tiles: 3394, Nanda and Tangla Please provide quotation in accordance to areas attached." 30 The attached drawings covered the four means of entry to the Centre. 31 Mr Bury, a sales representative of Glennon Tiles (the supplier), recorded in his diary for 2 February 2001, as found by the Judge (para [79]), a meeting with Mr Higginson from the architects as follows: "Conf nanda body tile, tangla spotted and 3394 to bdrs [builders] with [ochre] tactile - quoted ABC" 32 Mr Bury said that this "confirmed that the architects had specified it and [he] had quoted ABC at that stage;" (T day 3, 31). The 3394 tiles were black and manufactured by Marazzi. He said that the nanda and tangla tiles were rated R11 (T day 3, 21). 33 The evidence included an undated cover sheet sent by the architects, apparently by courier, to the project manager with three samples of "external tiles for your approval" (para [87]). This appears to link up with the minutes of the site meeting on 10 January 2001. 34 On 13 February the tiler submitted its quote for the work including the supply of the necessary tiles (tab J). It was awarded the contract on 15 February (tab K). The letter of appointment referred to the relevant drawings, the "Special conditions of Contract: 'Annexure D 'tiler/paver'" and "Specification: [architects'] Specification dated 22-2-00 Section 1 - General Requirements [and] Section 17 - Tiling". The text stated that the work included that required to comply with "all relevant Australian Standards" and stated: "You have given your assurance that you will comply with all aspects of the specification so far as it affects your scope of works." 35 Exhibit 4.5 (tab Q) is an undated summary of invoices from the supplier to the tiler between 16 March and 3 May 2001 for the supply of nanda, tangla and 3394 (Marazzi) tiles. 36 Mr Bury said that these were the tiles the supplier quoted for the Centre (para [86]), and this is consistent with the builder's request for a quotation from the tiler. On 27 November 2001 (tab M) Mr Bury sent a fax to Mr Stephen Donadon from the tiler which referred to the Miller Shopping Centre and stated: "Further to our telephone conversation please find attached the technical data for our 3394, [Nanda] & Tangla tiles supplied to the above project. Please note that they have an "R10" non-slip rating in accordance with AS 4586:1999". 37 On 27 August 2001 the tiler gave a written warranty to the builder that "all tiling works as per the Australian Standards and as per specifications" (tab L). 38 There was no direct evidence which identified the tiles actually laid in the areas which provided access to the Centre. The Judge said that if nanda and tangla tiles were laid they could not have been R11, V rated, or had a BPN of more than 54 when laid. Other tiles may have been laid and the evidence did not permit her "to decide which of the two alternatives is the more likely" (para [103]). 39 She then said that other evidence "points more towards nanda and tangla tiles, and 3394 tiles being laid, but because of the great discrepancy between the advertised R11 rate for nanda and tangla tiles and the test results, it is not possible to determine with any confidence which tiles were laid". (para [104 (subpara 6)]). The manufacturer's brochure (tab O) represented that the tangla tiles were R11, but it was not clear from this whether nanda tiles were R10 or R11 or were available in both ratings, although Mr Bury said that nanda tiles were R11. 40 The ramp in question was reconstructed after the accident, but tiles of the same type and colour were still in place elsewhere in the Centre where they were tested by the experts. 41 Mr Adams found an average co-efficient of friction on dry tiles of .5, with a minimum of only .34 with a W rating (para [55]). When the tiles were wet he found an average co-efficient of friction of .21 with a BPN of 22 and Mr Stephenson obtained an average BPN of 23. The Standard required a BPN greater than 54. Both experts agreed that the tiles tested, which the plaintiff said were the same colour as those on the ramp in question at the time, did not comply with the Australian Standards or the architects' specification. 42 The appeal challenges the findings of duty and breach as between the architects and the plaintiff, the owners, and the builder. The duties are related, but not necessarily the same. 43 Although at one point the Judge said that she was unable to determine which tiles were actually laid in these areas the circumstantial evidence makes it more probable than not that they were the nanda, tangla and 3394 tiles referred to in so much of the evidence. This Court is entitled to form and act on its own view. 44 The Judge found that the architects delivered samples of the nanda, tangla and 3394 tiles to the project manager in January 2001 and this finding was not challenged. However it is still necessary to determine the reason for the delivery of those samples and what the architects might fairly be understood as representing about them. 45 The undated cover sheet which accompanied the samples sent to the project manager said that they were "for your approval". The project manager should have been familiar with the tiling specification prepared by the architects. It was also aware of the limited and defined role of the architects during the construction phase. The latter's "amended fee submission" of 11 October 1999 "as requested" was sent to the owners care of the project manager at the latter's Sydney office (tabs E & F). The owners' Sydney office was elsewhere (tab F). 46 The delivery of the tile samples for the approval of the project manager must be evaluated against the agreed role of the architects which was known to the project manager and the owners. Although the drawings sent to the tiler to enable it to quote for the job (tab V) do not carry the architect's name, that work was covered by Phase 3 of their engagement and it may safely be inferred that they prepared them. 47 During Phase 3 the architects had no responsibility for the quality control needed to ensure that the tiles satisfied the technical requirements of the specification. The only role of the architects which could have led them to submit the samples "for approval" was that in item c) "Final selection of finishes and colours". 48 The architects gave no express representation or warranty about the technical properties of the samples, and there is no evidence that they had had them tested, or had made any enquiries about their slip resisting properties. There is no evidence, apart from the covering letter which accompanied the samples and the site minutes, of any communications between the architects the project manager and the builder at the time which could throw light on the purpose for which the samples were delivered or the nature of the approval sought. 49 The technical test reports in evidence which predate the plaintiff's fall obtained from the CSIRO and Metro Brick (tabs D (annexure), M, N) were obtained by the tiler and Urban Stone in February 1999 and August 2001 respectively. The report to Urban Stone does not relate to the relevant tiles. 50 The technical requirements for the tiles to be laid on this ramp had been defined in the specification incorporated in the building contract. No further approval from the owners or project manager was required in this respect unless these requirements were to be deliberately altered, but this has never been suggested. 51 The site minutes record the approval of the centre manager as well as the project manager and this strengthens the inference that the approval sought and granted related to the colour and appearance of the tiles. 52 The architects did not provide any technical information that would have been required to obtain any other approval. Their conduct has to be evaluated in the light of the surrounding circumstances known to the relevant parties. When this is done there is no basis for finding that they intended, or should reasonably be understood as having intended, to step outside their limited role under their terms of engagement to undertake responsibilities which the building contract and the tiling specification so clearly imposed on the builder, without additional remuneration. 53 Clause 3.1 of the specification required the builder, prior to installation, to obtain and submit, inferentially to the project manager, the manufacturer's published product data and express warranty that the product complied with the specification. The architects were entitled to assume that the builder would comply with these obligations and the project manager would insist on their performance. Nothing the architects did could have been understood as equivalent to performance of those obligations so as to make it unnecessary for the builder to do anything more. 54 This evaluation of the delivery of these samples is strengthened by the architects' limited obligation for quality control during Phase 4 which was limited to a visual inspection. 55 In February and March 2002 the architects faxed copies of the CSIRO and Metro Brick test reports (tab D Annexure, tab N) to the builder. There was no evidence that these reports were in the possession of the architects in January 2001 and in my judgment this conduct more than a year later throws no light on the architects' conduct in delivering the samples. 56 The nature of the legal relationship between the project manager and the owners was not explored at the trial but it may be inferred that the former acted as the owners' agent during the construction phase and in the administration of the contract. 57 If that was the case the owners were bound by the conduct and knowledge of the project manager in the course of its retainer: Permanent Trustee Australia Co Ltd v FAI General Insurance Co. Ltd (2001) 50 NSWLR 679 CA, 693, 696-8. As I have held, the project manager and builder cannot reasonably have understood that the samples were provided for any purpose other than approval for their colour and finish. 58 If the knowledge of the project manager is not to be treated for legal purposes as equivalent to the knowledge of the owners there is no evidence that the latter knew that the architects had delivered tile samples to the project manager or that they had understood that the architects had represented that the tiles met the technical requirements of the specification. In these circumstances the responsibility of the architects to the owners did not extend beyond the matters defined in their amended fee submission of 11 October 1999. 59 In my judgment therefore the architects, by delivering these samples to the project manager, and by their associated conduct at the time, did not represent to the project manager or the owners or the builder that those tiles complied with the technical requirements of the specification or assume any responsibility to them for such compliance. 60 That leaves for consideration the duty, if any, owed by the architects to the plaintiff for the slip resisting qualities of these tiles. The relevant test is that established by the judgment of Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74, 85: "… what an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes … neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. 61 These principles were affirmed in Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588, 599, 603. 62 If, as I have held, the architects did not undertake the task of selecting tiles which complied with the technical requirements of the specification either by their terms of engagement, or by delivery of the samples there is no foundation for a finding of negligence against them based on the inadequacy of the slip resisting qualities of the tiles as laid. It has never been suggested that they were negligent in the design of this ramp or in framing the technical specification. 63 The judge's apportionment of 50% to the owners, 30% to the architects and 20% to the builder must be set aside. That apportionment reflected her view that the owners were largely at fault in the post construction phase. She said that they were on notice of a problem during the time the ramp had been open following completion of the tiling. In these circumstances I would substitute an apportionment of 50% to the owners and 50% to the builder. 64 In my judgment therefore the appeal must be allowed, and the following orders should be made:

DRUMMOND AND ROSEN PTY LIMITED v EASEY & ORS

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