Supreme Court of SA|2000-12-20

GLENMONT INVESTMENTS PTY LTD v O'LOUGHLIN & ORS No. SCGRG-91-2240 [2000] SASC 429 (20 December 2000)

08/08/2000, 09/08/2000, 10/08/2000, 11/08/2000, 14/08/2000.

NEGLIGENCE - DUTY OF CARE - OCCUPIER - INDEPENDENT CONTRACTOR CONTRACT - IMPLIED TERM TO TAKE REASONABLE CARE - LIABILITY FOR NEGLIGENCE OF INDEPENDENT CONTRACTOR - EXCLUSION CLAUSES DAMAGES - MEASURE OF DAMAGES Respondent owner of mechanical dinosaur exhibited at 1985 Royal Adelaide Show - dinosaur destroyed by fire during dismantling of surrounding enclosure 18 days after conclusion of Show - respondent successful in claim for damages against the occupier of the premises (the Society) and against an appellant with whom the respondent entered into a contract for the dismantling and removal of an enclosure surrounding the dinosaur and against an independent contractor employed to carry out that task - whether Society owed common law duty of care to the respondent - whether Society in breach of any common law duty of care - whether exclusion clauses in agreement between respondent and Society excluded Society's liability for negligence - whether evidence justified a finding of a breach of duty of care by dismantler - implied term of contract to take reasonable care - liability of dismantler in tort or in contract for negligence of independent contractor - damages awarded of $31.25m. - whether award of damages excessive - apportionment - costs.

Development Act 1993 (SA) s 72;
Wrongs Act 1936 (SA) ss 17C and 25;
Criminal Code of Queensland s 408C;
Supreme Court Rules r 41, referred to.
Devries v Australian National Railways Commission (1993) 177 CLR 472;
SS Hontestroom v SS Sagaporack [1927] AC 37;
Coleman v Shell Co. of Australia Ltd [1943] NSWStRp 41; (1943) 45 SR (NSW) 27;
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261;
Hughes v National Trustees, Executors and Agency Co. of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134 at 149;
R v Szach (1980) 23 SASR 504;
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co. of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41;
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313;
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493;
Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; (1986) 161 CLR 500;
Schenker & Co. (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VicRp 74; [1990] VR 834;
Valkonen & Valkonen v Jennings Constructions Ltd (1995) 184 LSJS 87;
Mann v Carnell [1999] HCA 66; (1999) 168 ALR 86;
Scott v The President, Councillors and Ratepayers of the Shire of Numurkah [1954] HCA 14; (1954) 91 CLR 300 at 313;
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330;
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337;
Bryan v Maloney (1995) 182 CLR 608;
Dodds Properties (Kent) Ltd v Canterbury City Council [1981] All ER 928;
Burns v M.A.N. Automotive (Aust) Pty Ltd [1986] HCA 81; (1986) 161 CLR 653;
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332;
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, applied.
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672;
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520;
R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053;
Canada SS Rules (Canada SS Lines Ltd v The King [1952] AC 192;
Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40;
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, discussed.
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) [1999] HCA 3; (1999) 73 ALJR 306;
G L Nederlands (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62;
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475;
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33;
Watson v George [1953] HCA 41; (1953) 89 CLR 409;
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479;
Owners of Dredger Liesbosch v Owners of Steamship Edison [1933] UKHL 2; [1933] AC 449, considered.

Appellant: THE ROYAL AGRICULTURAL & HORTICULTURAL SOCIETY OF SOUTH AUSTRALIA INC.

Counsel: MR CURTAIN QC WITH HIM MR M I BELL - Solicitors: LAWSON DOWNS

Appellant: THE ROYAL AGRICULTURAL & HORTICULTURAL SOCIETY OF SOUTH AUSTRALIA INC. (IN ITS OWN RIGHT)

Counsel: MS B J POWELL QC, WITH HER MR R A CAMERON - Solicitors: LEMPRIERE ABBOTT MCLEOD

Counsel: MS S J MAHARAJ - Solicitors: MARRONE & CO.

Appellants: DAVID ALLAN PARKER AND TERRY PETER EDWARDS

Counsel: MR D A TRIM QC WITH HIM MR R A HARMS - Solicitors: GUN & DAVEY

Counsel: MR A J BESANKO QC WITH HIM MR G HOLLAND - Solicitors: LYNCH & MEYER

Judgment No. [2000] SASC 429

1 DOYLE CJ, NYLAND AND MARTIN JJ. In September 1985 a large mechanical dinosaur was exhibited at the Royal Adelaide Show. It was housed in a purpose-built structure ("the enclosure"). During dismantling of that enclosure on 25 September 1985 after completion of the Show, the dinosaur caught fire and was destroyed. In September 1991 the first respondent, Glenmont Investments Pty Ltd, ("Glenmont") took proceedings in this Court as the owner of the dinosaur alleging that the first appellant, the Royal Agricultural and Horticultural Society of South Australia Inc. ("the Society") and four other defendants were in breach of duties of care owed to Glenmont and seeking damages as a consequence of the destruction of the dinosaur. The trial commenced on 7 April 1999 and concluded on 17 June 1999. In a judgment delivered 25 November 1999, the learned trial Judge awarded damages and interest of $31.25 million and apportioned liability between the defendants. The defendants have appealed against the findings of liability, the amount of damages awarded and the apportionment of liability.

2 In 1979, Mr Allan Limb of Launceston conceived the idea of building a mechanical dinosaur. Commencing in mid-1980, construction took approximately four years. The project became what the Judge described as a "consuming passion" for Mr Limb. During the period of construction, Mr Limb was also operating a bituminising business under the name of Tarmak Pty Ltd ("Tarmak"). The Judge found that as a consequence of Mr Limb's devotion to building the dinosaur, the business of Tarmak "ran down". In 1984 at about the time that construction was being concluded, the Westpac Bank appointed a receiver of the property of Tarmak. The company was in receivership at the relevant times. The receivership ended in December 1985. At the time of the trial, Tarmak still carried on business.

3 Mr Limb prepared the plans for the construction of the dinosaur. Construction was initially undertaken in a large wooden-framed building on the business premises of Tarmak in Launceston. Employees of Tarmak assisted in the construction. In the latter stages of construction, the premises of Tarmak became inadequate and the partially constructed dinosaur was moved to the Launceston Showgrounds. Although construction had not been completed and the dinosaur was unable to move, it was put on display for the period of the Launceston Show.

4 During construction, Mr Limb made a number of inquiries concerning a site at which to exhibit the dinosaur following completion of construction. He experienced difficulties in obtaining approval to place the exhibit near a population centre in Tasmania. In 1981 he arranged a lease of approximately four hectares of land on the Pacific Highway not far from Dreamworld in Queensland. Subsequently Mr Limb moved the dinosaur by boat to Queensland where construction was completed.

5 The Judge described the dinosaur as made up of "thousands of parts, activated by hydraulics and controlled by many mini computers". His Honour said it was a "wonderful representation" of a dinosaur, capable of "breathing, growling and moving". Particular attention had been paid to the skin in order to ensure that it was life-like. The Court has seen video films of the dinosaur during construction and in operation which well demonstrate its capabilities. It stood on a motorised platform which moved slowly and from which the various functions were activated and controlled. The dinosaur was able to make a variety of sounds including breathing sounds, the eyes were capable of moving and the eyelids could close independently or together. Movement could be obtained from the neck, head, jaw and tongue. Walking-like movements were provided through the legs and hips. There was also movement in the tail and arms. All movements were slow. The dinosaur stood approximately 12 metres high and was 30 metres in length.

6 Part of the Queensland property was set up as a "Pre-Historic Park". Using the dinosaur as the major attraction, the park was opened to the public in about September 1984. The Park closed in about October 1984 after approximately six weeks of operation. It will be necessary to return to the evidence concerning the financial circumstances of Mr Limb and Glenmont at that time later in these reasons.

7 During the latter part of 1984, Mr Limb made telephone contact with Mr Paul Anderson, the Manager of Commercial Exhibits for the Society. Mr Limb inquired about exhibiting the dinosaur at the 1985 Show. Eventually an Exhibit Site Agreement dated 31 July 1985 was signed by Mr Limb. The details of the events that led to the signing of that agreement are canvassed later in these reasons.

8 Following the closure in October 1984 of Pre-Historic Park in Queensland, the dinosaur had been dismantled and stored in Queensland. Mr Limb arranged for the dismantled dinosaur to be transported from Queensland to Adelaide. It was reassembled in about one day at the Showground. The Showground was owned and occupied by the Society. The enclosure was then erected around it. The enclosure was a substantial structure of tubular steel. The parts were bolted together. Its purpose was to screen the dinosaur and provide an enclosure, within which paying customers could view the dinosaur. The enclosure included a canopy which was manufactured on the ground and lifted into place on top of the steel enclosure by a crane. The canopy enclosed the highest part of the dinosaur, its head. When the canopy was lifted into place on top of the main part of the enclosure, the four corners of the canopy were welded to the top horizontal rails of the enclosure. Notwithstanding that welding, according to Mr Limb the canopy could have been removed without cutting the welds or rails by unbolting the vertical rails while holding the canopy with a crane, thereby enabling the canopy to come away with the horizontal rails.

9 The Judge found that Mr Limb made himself familiar with the nearest fire points. Mr Limb said he made himself familiar with the position of the fire hydrants and that he pointed out the two closest fire points to Mr Michael Apted, an employee who came from Launceston to act as a caretaker. Mr Apted confirmed that evidence. The Judge rejected a challenge to the evidence of Mr Limb and of Mr Apted in this regard. His Honour's finding is challenged on this appeal.

10 According to Mr Limb, prior to the opening of the Show he was visited by a person who identified himself as the "Fire Watchman" who apparently had the responsibility of inspecting sites before the commencement of the Show. That person suggested that Mr Limb should place some water-type fire extinguishers around the enclosure. Mr Limb said he complied by hiring three extinguishers and placing them within the enclosure. Mr Apted said that he and another employee of Tarmak took three or four extinguishers from Tarmak to the exhibit and two or three came with the dinosaur from Queensland. He said those extinguishers were present during the Show.

11 The Show was open to the public from 31 August to 7 September 1985. The dinosaur was exhibited throughout that period. Adults were charged $2 and children $1. A family ticket was also available. Mr Limb said the dinosaur was restricted in movement because of the small area of the site. The head and the forearms moved, but there was no other movement. In addition, the tail was twenty feet shorter than its full length. Attendance at the Show was in the order of 700 000. During the period of eight days, the exhibit took a total of $48 000, but Mr Limb said no profit was made. Mr Limb regarded the outcome from the Show as good although he had hoped to turn over a larger amount. The banking and use of the proceeds from the Show are discussed later in these reasons.

12 On 19 September 1985, Mr Limb advertised the enclosure for sale. The first defendant, now the second appellant Mr Barry O'Loughlin, responded. Eventually they agreed that Mr O'Loughlin would pay $2 500 to Mr Limb and remove the enclosure. In connection with that task, Mr O'Loughlin reached an arrangement with the second and third defendants, now the appellants Mr David Parker and Mr Terry Edwards ("Mr Parker"). An employee of Mr Parker, the fourth defendant Mr Jonathan Foote, later commenced dismantling the enclosure. While he was using oxy-acetylene cutting equipment to cut the canopy off the main enclosure, the dinosaur caught fire. It was totally destroyed.

13 In addition to seeking to recover damages from Mr Foote by reason of his negligence in carrying out the dismantling, Glenmont claimed that Mr Parker was vicariously liable for the negligence of Mr Foote. Glenmont also claimed damages from Mr O'Loughlin asserting a breach of their contractual arrangements and breaches of the duty of care which Glenmont said Mr O'Loughlin owed to Glenmont. Finally, Glenmont sought and recovered damages against the Society on the basis of a breach of duty owed by the Society to Glenmont, particularly in connection with the capacity to fight a fire.

14 In summary, the Judge found that Mr Foote was negligent in the manner in which he used the oxy-acetylene cutting equipment without taking any precautions against fire, and that Mr Parker was vicariously liable for the negligence of Mr Foote. Notwithstanding a finding that Mr O'Loughlin engaged Mr Parker as an independent contractor to carry out the dismantling of the enclosure, the Judge also found that Mr O'Loughlin was in breach of a duty of care that Mr O'Loughlin owed to Glenmont. As to the Society, his Honour found that it was negligent in failing to call the Fire Service immediately when its employee became aware of the fire and in not using water that was available from a fire hydrant to fight the fire. His Honour rejected the proposition that the plaintiff, through Mr Limb, was guilty of contributory negligence. Contribution notices having been filed between the appellants, his Honour apportioned liability as follows:

15 As mentioned, the Judge found that Mr Foote was negligent. His Honour observed that Mr Foote had been honest enough to admit his negligence. He found that Mr Foote should have realised there was at least the risk of fire and that he took risks using oxy equipment above the dinosaur's head without taking any precautions against fire. Mr Foote has not appealed and has chosen not to take any part in the appeal. There is no appeal by any other defendant against the finding that Mr Foote was in breach of a duty of care he owned to Glenmont.

16 In attacking the various findings of the Judge, the Society contended that the Judge failed to analyse properly the evidence and "weaved" a course through the evidence by ignoring evidence that did not favour the case for Glenmont in order to find in favour of Glenmont. This approach included an inadequate consideration of the evidence adversely impacting upon the credibility of Mr Limb. It is necessary, therefore, for this Court to examine the relevant evidence and to reach its own conclusions in accordance with the well-known principles enunciated by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) [1999] HCA 3; (1999) 73 ALJR 306.

17 The appellants made what the Judge described as a "sustained and strong attack on Limb's credit" in a number of respects. His Honour made the following observations:

"Limb gave evidence-in-chief for four and a half days and was under cross-examination for seven and a half days. His re-examination took another half day. I had ample time to see and hear him, to make an assessment. His demeanour throughout was impeccable. He was patient and courteous, he gave every indication that he was doing his best to answer every question to the best of his ability. I thought him a good witness.

Certainly Mr Trim and other counsel for the defendants, found a few weak spots. It would be surprising if during 12 days in the witness box a witness did not say something which could be attacked. Here are examples."

18 The Judge briefly dealt with three aspects of Mr Limb's evidence concerning his negotiations with Moomba, a note in a message book and correspondence with a witness, Mr Minick. He mentioned an issue linked to an affidavit sworn by Ms Bolzon, an employee of Glenmont's solicitors. (This is dealt with later in our reasons). He then expressed the conclusion that, despite the attacks, "Limb was a reliable witness whose account of events I should and do accept".

19 In what follows, we have endeavoured to summarise the principal features of the various attacks made by the appellants upon the credibility of Mr Limb. At the conclusion of that examination, we have identified those matters which we consider are of particular significance and have considered the effect of the criticisms when viewed in their entirety.

20 We deal later with this topic when discussing the refusal of the Judge to permit evidence to be called from Glenmont's solicitors.

21 After the dinosaur was destroyed, Mr Limb communicated with organisers of the Moomba Festival in Victoria about exhibiting the dinosaur at the Festival. The appellants claim that this was a dishonest attempt by Mr Limb to establish a contrived figure for the purposes of supporting Glenmont's claim for damages. The Judge referred to the evidence of Mr Limb that he engaged in the exercise in an endeavour to help establish the value of the dinosaur and found that, although it was a "silly thing to do", the conduct did not demonstrate dishonesty. Considered in isolation, in our view that finding was open to his Honour.

22 This was an issue of substance involving what the appellants claimed was the concealment by Mr Limb of correspondence unfavourable to Glenmont's case.

23 Mr Minick was involved in the amusement industry in the United States. Mr Limb had approached him prior to the destruction of the dinosaur with a view to taking it to the United States. Mr Minick said he considered that the dinosaur had potential for use on the Fair circuit. He gave evidence of likely attendances at such an exhibit as being "from a low of around 5% to a high, maybe as much as 15% or 20%" of the total attendance of each Fair.

24 During cross-examination, Mr Minick was asked about the range of costs he had provided to Mr Limb. He referred to a "stock letter" in which he had set out his typical fees on an hourly basis. Shortly before the luncheon adjournment, counsel for the Society called for production of the letter. When the trial resumed after the adjournment, counsel for Glenmont indicated that he had assisted Mr Minick in obtaining the documentation and, in the process, he had noticed other documents in Mr Minick's file that counsel had not seen. As a consequence, disclosure was made of a series of letters sent by Mr Minick via facsimile to Mr Limb on 30 April, 1998. Three of the letters were addressed to Mr Limb's solicitors and three to Mr Coultas, an accountant who gave evidence for Glenmont on the aspect of damages. In that correspondence Mr Minick spoke of attendances of around 2 to 3 per cent of total admissions for large attended fairs and no more than 5 per cent for fairs with less attendance.

25 As mentioned, the correspondence was sent by facsimile to Mr Limb on 30 April, 1998. On 25 May 1998, Mr Limb wrote to Mr Minick confirming that his accountant's expert report was based on the Adelaide Show figures as being a basis "for any other Fair and Tours". He wrote that because it was documented that the dinosaur achieved slightly over 5 per cent of total attendance at the Adelaide Show, and because he had first hand experience:

"[I]n Court it will be my job to try and convince the Judge that the 5 per cent of total Show patrons could be conservative in comparison to what we may have achieved with a full show of acts ....".

Later in the letter Mr Limb wrote of what he needed from Mr Minick on this topic:

"After further thought we don't need anything further in writing at this point, when it comes to Court your agreeance that it would be possible for our exhibition to attract a 5 per cent average in U.S.A. fairs as achieved in Adelaide, if we tailored the enclosure to handle Fairs with large attendances as well as small and could run many shows per day, bearing in mind the show the public would see would be far superior to Adelaide and advertise accordingly."

26 Following that correspondence, for the purposes of the claim Mr Limb worked on a percentage of 5 per cent. The failure to disclose correspondence relevant to the issue of damages was potentially damaging to Mr Limb's credit. It was highly suggestive of an attempt by Mr Limb to conceal relevant evidence from the Court and called for an explanation. However, the documents were only discovered after Mr Limb had concluded his evidence and no application was made to recall Mr Limb in order to cross-examine him about this topic.

27 After referring to the correspondence and observing that "apparently" Mr Limb failed to disclose the letters to his solicitors, the Judge found as follows:

"As for the letters from Minick I don't know what the explanation may be. There may be a quite innocent one. Perhaps Limb did not appreciate the importance of handing them to his solicitors. In any case I am not prepared to find him an unreliable witness merely on that one matter when my overall impression is that I can rely on what he said."

28 The Judge was at a disadvantage because Mr Limb had not been cross-examined on this topic. The transcript does not disclose any complaint about the absence of cross-examination. During final submissions, counsel for the Society was highly critical of Mr Limb's conduct in respect of the correspondence and the failure to discover it. Counsel categorised the conduct as "an attempt to deceive". In response, counsel for Glenmont submitted that, in attacking the credit of Mr Limb, the appellants had made some good points, but had detracted from the value of those points by "trying to score too many useless ones". In that context counsel said that "the Minick letters were the good points". It appears that counsel for Glenmont did not address the issue of Mr Limb's conduct in this regard any further.

29 In these circumstances, no complaint having been made before the Judge that Mr Limb was not given an opportunity to provide an explanation for the correspondence and failure to discover it, the Judge was entitled to draw whatever conclusion was appropriate from the evidence before him. As the evidence stood, the most obvious explanation was that Mr Limb set out to conceal unfavourable evidence from the appellants and the Court. Viewed in this way, it could be said that the search by the Judge for an innocent explanation led his Honour to speculate in a manner that was demonstrative of his desire to accept Mr Limb as a reliable witness. We return to this issue later in considering the total effect of the criticisms.

30 In support of Glenmont's case that sufficient funds could have been found to finance the cost of transporting the dinosaur to the United States, Mr Limb said that he owned significant assets, including a Lamborghini motor vehicle, which could have been sold to raise the necessary funds. During cross-examination Mr Limb said that the vehicle was his personal unencumbered property that he could sell to raise money. This evidence was in conflict with a report as to the affairs of Tarmak dated 12 December, 1984 in which the Lamborghini was identified as a leased item in a Schedule of Contingent Assets. Mr Limb had signed that document.

31 In our opinion this issue is not of particular significance in the assessment of Mr Limb's credit. During his examination he referred to the fact that Tarmak originally leased the vehicle and that in those days the financial arrangements were such that eventually he would own the vehicle. Mr Limb's accountant, Mr Slater, and the administration manager of Tarmak, Mr Clayton, both appeared to regard the Lamborghini as Mr Limb's personal vehicle. When Mr Cooke took over as receiver he did not make any lease payments in respect of the Lamborghini. In these circumstances, it is not surprising that Mr Limb would have regarded the vehicle as his personal property.

32 We discuss elsewhere the circumstances in which the proceeds from the Adelaide Show were banked into the account of Mr Limb's then girlfriend. In addition, the appellants submitted that Mr Limb failed to account to Glenmont for the profits. As we observe later in these reasons, Mr Limb appears to have treated the proceeds from the Show as free to be used as he saw fit.

33 The Judge referred to the issue of the banking and Mr Limb's explanation that it was more convenient to bank the funds into the account of his then girlfriend at the Commonwealth Bank. His Honour did not refer to the evidence that Glenmont had an account at the Westpac Bank nor to the existence of a branch of the Westpac next to the branch of the Commonwealth Bank into which the proceeds were deposited. As to the suggestion that the funds were deposited in the account of Mr Limb's girlfriend in order to hide the proceeds, the Judge expressed his opinion that "it was all quite innocent".

34 His Honour referred to Mr Limb as deserving of the title of engineer for having built "so wonderful a machine as Tyrannosaurus-Rex" and took a generous view of Mr Limb's attitude in connection with the funds:

"He was an engineer and a businessman. He was not a lawyer, not even, I think, well versed in business procedures. It is one thing for counsel to criticise witnesses for not crossing every "t" and dotting every "i", even sometimes not acting to the letter of the law: it is another to find that this sloppiness is sinister. I don't think the legal niceties as to which entity was entitled to the money taken at the Show entered Limb's head. I remark too that Jetson, who had an interest to the extent of $100,000 in the dinosaur, was present and, I assume with confidence that he knew what was going on, and had no criticism."

35 There is considerable force in the submissions of the appellant that the Judge misunderstood the significance of this evidence and took too generous a view of Mr Limb's motives. The Westpac account was in the name of Glenmont. It was Glenmont that was exhibiting the dinosaur. A branch of the Westpac Bank was immediately next door to the bank into which the funds were deposited. In evidence Mr Limb initially suggested that it was more convenient to use his girlfriend's account at the Commonwealth Bank. That explanation was exposed as lacking in credibility.

36 As to the "assumption" that the Judge said he made "with confidence" that Mr Jetson knew what was going on, the evidence of Mr Jetson provided no grounds for such an assumption. Mr Jetson gave evidence that he was not concerned as to the banking. He assumed that Mr Limb placed the takings from the Show "where he needed it". He had no particular expectation as to where the monies from the Show would be placed. He left it to Mr Limb and trusted Mr Limb.

37 As we later indicate, in our opinion the use of the funds by Mr Limb does not carry any significance in the context of his belief as to who owned the dinosaur. However, in our view his conduct in this regard cannot be brushed aside as mere "sloppiness" and it is too generous to Mr Limb to say that the "legal niceties" as to which entity was entitled to the money did not enter his head. Mr Limb's entire conduct with respect to the dinosaur and his evidence provides a strong demonstration of his intelligence and understanding of such issues. We are satisfied that while Mr Limb may have felt free to use the proceeds as he saw fit, he is likely to have been aware that he should have banked the proceeds in the account of Glenmont. Importantly, his explanation of convenience lacked credibility and his willingness to be less than frank on this issue was damaging to his credit.

38 Mr Limb gave evidence that he had asked Mr O'Loughlin to inform him in advance of the time when the structure would be dismantled. He said he did not receive a message as to the time of the dismantling. However, in a message book kept at the premises of Tarmak in Launceston, a message was entered on Wednesday, 25 September 1985, two days before the structure was dismantled. The message was received by the receptionist at Tarmak, Ms Angela Walters. It was entered into the book in accordance with the established system for the purpose of enabling Mr Limb to see the message when he attended at the office. The message was as follows:

O'Loughlin $2,500 got cheque in post certified to house.

39 The message had been crossed out. The Judge accepted the deletion as a sign that Mr Limb had read the message. Mr Limb said that at the time the message arrived he was elsewhere in Tasmania working for Tarmak and that he did not see it before the fire. He also said that he did not understand the message to mean that the structure was to be dismantled on the Friday. The Judge accepted Mr Limb's evidence that he did not receive the message prior to the fire but, as to Mr Limb's understanding of the message, his Honour said:

"I do find it more difficult to accept that when he did read it he didn't understand it to mean the enclosure was to come down on the Friday. If he had received the message I think he should have understood it and would have telephoned his uncle asking him to be present during the demolition. That is what he had in mind: his uncle would be present to look after his interests. Having formed the view of the man - that he is careful and sensible - and remembering that the dinosaur was his creation, why wouldn't he have asked his uncle to be there?"

40 The answer to the question posed by the Judge could be that the message was not received before the fire. However, there is force in the proposition put forward by the appellants that it is highly unlikely that Mr Limb would routinely have crossed out the message after he had heard of the fire. The appellants suggested that Mr Limb received the message, but had no intention of supervising the dismantling of the structure.

41 The significance of this evidence to the issue of contributory negligence is discussed later in these reasons. However, for present purposes, it is sufficient to note the air of unreality attaching to Mr Limb's evidence that he would not have understood the message to mean that the structure was to be dismantled on the Friday.

Failure to discover signed agreement and letter cancelling first site allocation

42 Through Mr Limb, Glenmont discovered and produced the original site application which was never forwarded to the Society, together with the Royal Show membership badge and other documentation. It was said to be surprising that the letter from the Society cancelling the first site allocation and the signed exhibit site agreement pursuant to which the dinosaur was exhibited were not discovered or produced.

43 In our opinion, this point is of no significance.

Mr Limb's evidence concerning his financial position

44 Mr Limb gave evidence of his financial position and the way in which he could have raised the funds necessary to finance the travel of the dinosaur to the United States. It is unnecessary to canvass that evidence. The appellants submit that the evidence could not have been true. Tarmak was in receivership from December 1984 until December 1985. Mr Limb swore an affidavit dated 20 October 1992 which was filed in the proceedings to explain his delay in instituting the proceedings. In that affidavit Mr Limb stated that during the appointment of the receivers, and "for a significant period afterwards," neither he, Glenmont nor Tarmak were in a financial position to commence the proceedings.

45 The only asset that had the potential to earn funds was the dinosaur. It is not surprising that, after the destruction of the dinosaur, Mr Limb and the entities to which he referred were in a poor financial position. In our opinion, the statements in the affidavit are not in such conflict with the evidence of Mr Limb that he believed he could have raised the funds to transport the dinosaur to the United States that the court should conclude that his evidence was false. Whether Mr Limb would have had the capacity to raise the necessary funds to transport the dinosaur to the United States if it had not been destroyed is a different issue canvassed later in these reasons.

46 In the context of the possible end to the receivership of Tarmak, a proposed scheme of arrangement was presented to creditors. The explanatory statement which was part of the proposed scheme included the following:

"(e) During August and September 1985, the dinosaur was displayed at the Adelaide Show where it made an as yet undetermined profit which will be defrayed in making payments to the creditors of Tarmak-Jetson Unit Trust." (our emphasis)

47 The appellant submitted that the statement was false as Mr Limb was well aware of the profit because the proceeds had been banked in his girlfriend's bank account. In his evidence Mr Limb maintained that there had not been any profit for distribution. He said "we made $17 000 roughly" and that he retained it and put it toward litigation expenses from the time of the fire onwards. When it was put to him that he did not seek advice about bringing the proceedings until 1991, Mr Limb said he kept the funds under his control until he needed them, spending a little bit on the way consulting solicitors. Although Mr Limb was cross-examined about the explanatory statement, the allegation that the statement under consideration was untrue does not appear to have been put to him.

48 It is somewhat surprising that Mr Limb was unable to determine the profit, if any, that had been made by Glenmont in exhibiting the dinosaur at the Adelaide Show. It may be that, bearing in mind the manner in which Mr Limb had dealt with the proceeds, he was reluctant to embark upon such an exercise. As the suggestion was not put to Mr Limb, in our opinion this particular criticism is of little weight in assessing the credibility of Mr Limb's evidence.

49 In an affidavit sworn in these proceedings on 20 October 1992, Mr Limb stated:

"In or about August 1991 I sought legal advice regarding the Plaintiff's rights in relation to this matter. I then became aware that the limitation period for the Plaintiff to commence proceedings against the Defendants herein, expired on 26 September 1991."

50 During cross-examination about why the institution of the proceedings had been delayed, Mr Limb gave the following evidence:

Q. You were given advice about a six-year time limit.

51 Confronted with the proposition that the statement in his affidavit was in conflict with his evidence, Mr Limb denied that the statement in his affidavit should be read as meaning "I first became aware". He said it was expressed incorrectly. He maintained that when he sought legal advice in August 1991, he was already aware of the limitation period and aware that he had a month within which to institute the proceedings within that period.

52 The affidavit was misleading. It conveyed the incorrect impression that Mr Limb first became aware of the impending expiry of the limitation period when he received legal advice in August, 1991. In our opinion, Mr Limb's bland explanation was unsatisfactory. Removed as we are from the atmosphere of the trial, and in the absence of any finding by the Judge, it is difficult to reach a firm conclusion. However, at the least, in our opinion the Judge should have felt uneasy about the veracity of the explanation given by Mr Limb.

53 The explanatory statement accompanying the proposed scheme of arrangement included a statement that the effective price of $750 000 for which the dinosaur was sold to Glenmont represented approximately the true value of the dinosaur. The statement continued:

"It is anticipated that to substantiate this value Allan Limb would have to prepare detailed plans of the dinosaur from the working drawings he now holds. He is prepared to do this as quickly as possible and at no charge if the scheme proceeds." (our emphasis)

54 Contrary to the statement that Mr Limb held working drawings after the fire from which he could prepare detailed plans, Mr Limb gave evidence that the working drawings had been stolen from his car during the last stage of the construction of the dinosaur:

A. No, I did technical drawing at school along with fitting and turning which is in the same area.

A. They were stolen out of my car in a large bag I carry around all the time so I could work on it at home or -

Q. When were they stolen in relation to the construction.

A. In the later stage when the dinosaur was virtually up in the start of commission and finishing off the smaller components."

55 Mr Limb was confronted with the conflict during cross-examination:

"Q. What is the truth: what you have told us in these proceedings, or what is in that sentence.

A. That is not quite correct. I have got working drawings, yes, but not all of them, and I could actually put the plans together over time from the basis of my knowledge.

Q. There is a specific undertaking in this passage. It goes on "he is prepared to do this as quickly as possible and at no charge if the scheme proceeds." Is that true, or not, that you had the ability.

A. I was trying to help the scheme as much as I could, yes.

Q. But what is the truth: you had sufficiently detailed plans to enable the substantiation of value to be done, or, as you have said in court, you didn't have detailed plans.

A. No, I said that I have only got some plans left which are discovered. The main plans were stolen. I have actually seen a document in discovery somewhere where someone else verified the fact they were stolen way back, I have told the court."

56 We are again in the difficult position of not having a finding by the Judge. In our opinion the Judge should at least have felt uneasy about the explanation given by Mr Limb.

Failure to discover documents concerning Queensland actions

57 During the course of cross-examination about the operation of Pre-Historic Park in Queensland, counsel asked Mr Limb whether he remembered that he or Glenmont was sued by a company called Lakesun toward the end of 1984. The cross-examiner was in possession of a summons issued against Glenmont and Mr Limb with respect to the supply of gravel to Pre-Historic Park. Objection was taken to cross-examination on the document on the basis that it had not been discovered. The cross-examiner maintained that the document and any other documents relating to actions against Glenmont and Mr Limb should have been discovered by Glenmont because they were relevant to the financial position of Glenmont. The Judge permitted cross-examination of Mr Limb about debts in Queensland.

58 The failure to discover documents concerning claims against Glenmont and Mr Limb in Queensland was unfortunate. However, it is in a different category from a failure to disclose the correspondence from Mr Minick. In our opinion, it is not possible for this Court to draw any firm conclusion from this matter viewed in isolation. It may, however, be part of the total picture that emerges when the various criticisms capable of substance are viewed in their entirety.

59 We later discuss this issue, and conclude that, in the absence of cross-examination of Mr Limb, the appellants failed to establish that Mr Limb was dishonest in connection with this transaction.

60 We have not endeavoured to canvass every criticism made of the evidence of Mr Limb. We have taken into account other criticisms identified in the submissions which we consider were of little or no significance. As is apparent from the preceding summary, in our opinion a number of areas should have given the Judge cause for concern about the credibility and reliability of the evidence of Mr Limb.

61 We indicate later that in our opinion his Honour also erred in refusing to hear certain evidence from Glenmont's solicitors and, as the evidence stood, it favoured a conclusion that Mr Limb had made a statement to his solicitors inconsistent with his testimony concerning his knowledge of the lay-flat hose. As to the correspondence with Mr Minick that was not discovered until after Mr Limb had finished giving evidence, the advice by Mr Limb to Mr Minick that nothing further was needed in writing was, in view of what occurred, disturbing. The evidence favoured a conclusion that Mr Limb subsequently concealed unfavourable correspondence from Mr Minick that preceded his advice to Mr Minick that nothing further was needed in writing. Viewed in its entirety, the evidence on this issue strongly suggested that Mr Limb formed an intention to conceal from the appellants and the court the unfavourable views expressed by Mr Minick in the correspondence of 30 April 1998. While it is unfortunate that the appellants did not seek the recall of Mr Limb for further cross-examination on this matter, the evidence favoured a conclusion unfavourable to the credit of Mr Limb.

62 Mr Limb's explanation for the banking of the proceeds from the Show and his evidence as to his understanding of the message in the Tarmak message book both lacked credibility. The conflicts in Mr Limb's evidence concerning both his knowledge of the limitation period and the theft of the working drawings were not satisfactorily explained.

63 The Judge did not undertake an adequate analysis of these issues which impacted adversely upon the credit of Mr Limb. His description of the flaws in Mr Limb's evidence and the inconsistencies as "a few weak spots" does not properly reflect the substance of the flaws. His Honour did not consider the cumulative effect of the various matters to which we have referred. In relying primarily upon his favourable impression of the demeanour of Mr Limb, and in failing properly to consider and analyse the relevant evidence, we conclude that this is one of those relatively rare occasions in which this Court can be satisfied that the Judge "has failed to use or has palpably misused his advantage" (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479). The inconsistencies between Mr Limb's versions and his conduct should have led his Honour to treat all of Mr Limb's evidence with great caution, particularly on critical issues.

64 We are satisfied on other grounds that the judgment in favour of Glenmont against the Society must be set aside. In these circumstances, from the perspective of the Society's appeal, it is unnecessary to endeavour to determine the impact of the errors by the Judge. As to the liability of Mr Parker, the errors of the Judge with respect to the credibility of Mr Limb do not have any impact upon the reasoning of the Judge or the basis upon which he found that Mr Parker was liable. The impact of the errors with respect to the liability of Mr O'Loughlin is discussed later in these reasons. On other issues, this Court has treated Mr Limb's evidence with great caution.

65 It is convenient to deal first with a point raised on appeal, but not pleaded or raised at trial.

66 Section 72 of the Development Act 1993 (SA) provides as follows:

(b) the defect or defects arise from the wrongful acts or defaults of two or more persons and

(c) those persons would, apart from this section, be jointly and severally liable for damage or loss resulting from the defective work; and

(d) an action is brought against any one or more of those persons to recover damages for that damage or loss,

the court may only give judgment against a defendant, or each defendant, for such amount as may be just and equitable having regard to the extent to which the act or default of that defendant contributed to the damage or loss.

(2) An act or default for which a person is vicariously liable will be taken to be an act or default of that person for the purposes of this section."

67 Counsel for Mr O'Loughlin submitted that this section is applicable to the claim made by Glenmont, and that any judgment against Mr O'Loughlin should have been only for an amount that was just and equitable having regard to the extent to which his act or default contributed to the damage or loss suffered by Glenmont. Counsel submitted that the Judge erred in entering judgment against Mr O'Loughlin for the full amount of Glenmont's loss, subject only to apportionment orders as between the defendants.

68 The Act defines "building work" in broad terms. It includes the "demolition or removal of a building:" s 4(1). A "building" includes a building or structure and one that is temporary or permanent: s 4(1). We agree that the dismantling of the enclosure is building work for the purposes of s 72. We are also prepared to accept that s 72(1)(a) applies to carelessness in the course of dismantling the enclosure that is tortious or a breach of contract. We accept the submission notwithstanding the awkwardness of describing such carelessness as defective building work. We consider that s 72 must have been intended to embrace what might be called casual acts of negligence and casual breaches of contract, and that the section is not limited only to what might be called inherent defects in a building. We also accept that Mr O'Loughlin and Mr Parker are jointly and severally liable to Glenmont for damage and loss resulting from the defective building work. We put the Society to one side because, as will appear later, we have concluded that the Society is not liable to Glenmont.

69 Accordingly, the requirement that a judgment be entered against Mr O'Loughlin only for an amount that reflects his responsibility is capable of application to the present case. But there are two obstacles to the application of s 72.

70 The first obstacle is the fact that the Development Act 1993 (SA) came into force on 15 January 1994. That is well after the events upon which Glenmont bases its claim, and after the proceedings had been instituted. The second obstacle is that s 72 was neither pleaded by any party nor raised at trial.

71 In our opinion s 72 does not apply to the claim by Glenmont against Mr O'Loughlin.

72 Before s 72 came into force, Glenmont had an entitlement to judgment against any tort feasor jointly and severally liable for the loss it suffered when the enclosure was demolished. That entitlement was to a judgment for the full amount of the loss suffered. The position as between the defendants was to be adjusted by the making of contribution orders under the Wrongs Act 1936 (SA) s 25.

73 In our opinion, to apply s 72 to Glenmont's claim against Mr O'Loughlin would be to alter a right of Glenmont and a liability of Mr O'Loughlin being a right and liability already brought into existence by events that had occurred prior to the coming into force of s 72. To do so would be to give s 72 a retrospective operation: see Coleman v Shell Co. of Australia Ltd [1943] NSWStRp 41; (1943) 45 SR (NSW) 27 at 31. In other words, to apply s 72 to the present case would be contrary to a general principle of construction described by Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 as follows:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on the events or transactions that were otherwise past and closed."

74 As Dixon CJ himself said, the distinction that he drew is clear in principle, but difficult in its application. As we have already said, our view is that at the time when s 72 came into force, Glenmont had a right to a judgment, for the full amount of its loss, against any persons jointly and severally liable for that loss. To apply s 72 would be to deny that right and to substitute a lesser right. We do not consider that s 72 can be regarded as merely regulating the manner in which Glenmont's right to damages is to be enforced, although we recognise that in a certain sense that is what it does. Nor would we regard the change effected by s 72 as merely a matter of practice and procedure as those terms are usually understood, although once again there is a procedural aspect to the provision because it affects the manner in which a judgment is entered.

75 Accordingly, we take the view that to apply s 72 to the present case would be to apply the law in a manner in which it is presumed that Parliament does not intend it to apply, unless there is some affirmative indication of such an intention. We can find no such indication of intention. We take the view that in expressing itself as it did, Parliament is to be taken as having intended to alter the law applicable to causes of action arising after the date of the enactment, and not to causes of action that had already arisen.

76 If we are wrong in that, we agree that this would be an appropriate case in which to allow the point to be raised for the first time on appeal. We do not accept that, if the point had been raised below, the course of the case would have been any different. It seems to us that the facts relevant to the application of the section were thoroughly investigated at trial. We do not think that a realisation that the court would have to determine what was just and equitable for the purposes of s 72(1) would have led to any evidence being advanced that was not advanced at trial.

77 Accordingly, we reject the submission advanced by counsel for Mr O'Loughlin.

78 As mentioned, Mr Limb advertised the enclosure for sale. Mr O'Loughlin responded and he and Mr Limb met on site. Mr Limb said he indicated to Mr O'Loughlin how the enclosure was bolted and could come apart and be used as a building. He explained that the canopy could be removed by unbolting the vertical rails while holding the canopy with a crane. Mr O'Loughlin responded that he did not want to buy the enclosure as a building as his main interest was in the metal. They were unable to reach agreement on a price. A few days later Mr Limb rang Mr O'Loughlin and asked Mr O'Loughlin to come up with a price. According to Mr Limb, during that conversation he told Mr O'Loughlin that he had to return to Launceston. He said the conversation continued as follows:

"He [Mr O'Loughlin] said 'you have got a bit of a problem. I have got some people I work with quite often'. Next door neighbour, business neighbours, whatever, and they were in the crane demolition games, into cranes and that kind of thing, and they could do a contract on it, something like a contract, he said, to take the building down for me to save me the bother if it was any help. After describing what they did as their job, I said 'what's say you bring them down and get a firm price on the job in case I rather do it myself if it is too dear or whatever'."

79 Mr Limb said Mr O'Loughlin agreed with that suggestion and said he would get back to Mr Limb. He said that Mr O'Loughlin rang Mr Limb's uncle, Mr George Limb, and suggested a price of $2 500. Mr Limb said he did not understand exactly what Mr O'Loughlin meant, so he telephoned Mr O'Loughlin. Mr Limb's version of that conversation was as follows:

"We discussed what happened after the site meeting. He said they were quite happy with the building, no problem getting it down around the dinosaur still being in it, and had a good look round the building and so on. Minor job to them, he said something to that effect. Then we discussed price. He suggested he would give me $2 500 and he would pay the crane people. Instead of me paying the other $600 difference, I just get the $2 500 and he would fix the crane people up. That was the deal."

80 During cross-examination Mr Limb gave the following evidence of the conversation when a price was agreed:

"A. He told me a price of $2 500, that's what he came up with, and, in that price, he had included a price of taking down the building with a crane company contracting to do it for a price - I think he mentioned the price of, say, $600 - and I wouldn't have to do anything. I had informed him I was going to be busy back in Launceston.

A. Yes. That's the conversation I started telling him about 'okay, if that's the case' - he told me they had looked at the building, they were happy with the way - it was a straightforward job to them, and to meet on site and have a look at it. He recommended doing a better job than I would do, trying to do it myself anyway. I went 'okay, I don't want any oxy-cutting around, up in the air particularly, you have seen the site' and they obviously can unbolt it without any. That was one of my particular worries. I also said 'give me a call the day before, so I can have a representative down on site'. That's about all I said to him."

81 Mr Limb said he specifically asked Mr O'Loughlin to make sure the contractors understood about not using oxy in the air. He said Mr O'Loughlin responded "that is okay, I have told them all that". During cross-examination Mr Limb agreed there was no discussion on site as to the flammability of the dinosaur and Mr Limb appeared to agree that the reference to not using oxy up high occurred in a later conversation. He maintained that when he spoke of not using oxy up high, he said something to the effect of "we don't want it to catch alight".

82 Mr Limb said he rang a couple of days later to find out what was happening and Mr O'Loughlin said the crane company was busy. Mr Limb was not told in advance when the dismantling would commence.

83 Mr O'Loughlin said that the discussion at the site was brief. Mr Limb indicated he wanted a price for the enclosure, but Mr O'Loughlin said the price was too high. There was no talk about the method of removing the enclosure and no discussion about flammability. No mention was made of whether or not oxy-equipment should be used. According to Mr O'Loughlin, after reaching agreement with Mr Parker for the dismantling of the enclosure, he telephoned a local number and spoke with Mr George Limb offering $2 500. He thought Mr George Limb later responded by accepting the offer. He said that his wife wrote out a cheque for $2 500 and wrote on the cheque butt "steel enclosure at the Showgrounds, free of all encumbrances, no responsibility for other items". Mr O'Loughlin wanted to make sure that the steel was free from debt and, in the event of theft, he did not want to take any responsibility for other items left behind with the contractors on site. He met with George Limb and gave him the cheque. According to Mr O'Loughlin, Mr George Limb signed the cheque butt. Mr O'Loughlin explained that he had been involved in an acrimonious separation from his wife and he had been unable to locate the cheque butt.

84 Mr O'Loughlin accepted that Mr Limb may have spoken of taking care with this very special dinosaur. He conveyed that message to Mr Parker, but he was thinking more of knocking the dinosaur with a piece of steel rather than starting a fire. Mr O'Loughlin denied that Mr Limb made a point of telling him that he did not want anybody cutting any metal up in the air.

85 The Judge did not make any specific finding as to the conflict between Mr Limb and Mr O'Loughlin about the use of oxy-cutting equipment above the dinosaur. However, his Honour found that Mr Limb was a reliable witness whose accounts of events he accepted and he took an adverse view of the credit of Mr O'Loughlin in more than one respect. One of the issues upon which Mr O'Loughlin was rejected concerned the signing by Mr George Limb of a receipt on the cheque butt for the payment of $2 500. Mr George Limb recalled Mr O'Loughlin delivering the cheque, but denied that he was asked to sign the cheque butt. The Judge found that Mr O'Loughlin invented the story to cover himself.

86 In rejecting the evidence of Mr O'Loughlin, the Judge appears to have misunderstood that evidence. As mentioned, Mr O'Loughlin said the words "steel enclosure at the Showgrounds, free of all encumbrances, no responsibility for other items" were written on the cheque butt because he wanted to make sure that the steel was free from debt and did not want to take responsibility for items left behind because of theft. His Honour misinterpreted the evidence as being that the receipt "by its terms absolved O'Loughlin from any liability for damage caused by the removal of the enclosure". It was in that context that his Honour found that the "story" was unlikely and that Mr O'Loughlin invented it to cover himself for what subsequently happened. His Honour's error was particularly significant. The motive which he attributed to Mr O'Loughlin for "inventing the story" did not exist. In those circumstances, there was a fatal flaw in the reasoning of the Judge which led him to the view that Mr O'Loughlin had invented a story and was not being honest in his evidence. Such a finding was very damaging to the credit of Mr O'Loughlin in the eyes of his Honour.

87 In the circumstances to which we have referred, the finding of the Judge concerning Mr O'Loughlin cannot stand.

88 The Judge described Mr O'Loughlin as a scrap metal dealer who had no experience of dismantling enclosures nor any knowledge of how to go about it. He accepted that Mr O'Loughlin sought the assistance of Mr Parker with whom he had previously worked. There was a dispute between Mr O'Loughlin and Mr Parker as to the nature of their arrangement. Mr Parker claimed that they reached agreement that Mr O'Loughlin would merely hire the crane and the labour of a crane driver and a rigger for Mr O'Loughlin to use as he wished in demolishing the enclosure. However, the Judge preferred the version given by Mr O'Loughlin that they reached agreement that for $600 Mr Parker would carry out the task of dismantling the enclosure. His Honour found that "Parker and Edwards decided to do an 'el cheapo job'" on the basis that "they would send a crane and a rigger and leave them to do the work as best they could". His Honour reached that conclusion notwithstanding his concern about the reliability of the evidence of Mr O'Loughlin. He found that Messrs Parker and Edwards were even less reliable than Mr O'Loughlin. He found that they were quite dishonest.

89 Mr O'Loughlin said that on his way to the site on the day of the fire he called at the yard of Mr Parker and was asked to take some tools of trade to the job. The equipment included oxy-cutting equipment. When he arrived at the site the crane and Mr Foote were present. Mr Foote asked Mr O'Loughlin what he wanted on Mr O'Loughlin's truck first. He responded that he would take the railway wheels (which had been used for ballast). The loading of the wheels was done with the assistance of Mr Foote and the operation of the crane. Mr O'Loughlin said he told Mr Foote that he wanted the steel as long as possible. He might have told Mr Foote and the crane driver to be careful. After the wheels were loaded he left in his truck. When he returned the fire had already occurred.

90 Mr Foote said that he met Mr O'Loughlin at the site. Asked what discussion occurred as to what was to be done, Mr Foote responded:

"A. What I can remember is that he said it was a - he was quite adamant that we were very, very careful not to harm the dinosaur in any way, and he said 'be very, very careful whatever you do, don't hit, don't knock it' and don't hurt [the] thing basically."

91 Mr Foote also said that Mr O'Loughlin explained that "basically he wanted it dismantled into individual pieces and then sort of bundled and stacked on his truck". Mr O'Loughlin basically told Mr Foote it was just a matter of getting up on the enclosure and unbolting it. Mr Foote asked if Mr O'Loughlin had a ladder and received a negative reply. Using his initiative, Mr Foote rode the hook of the crane up and the crane driver extended the jib enabling Mr Foote to jump off the hook onto the enclosure. By this time Mr O'Loughlin had left the site.

92 The Judge accepted that Mr O'Loughlin told Mr Foote to be very careful not to harm the dinosaur, but that nothing was said about cutting the steel or the use of oxy-cutting equipment. His Honour concluded that when Mr Foote asked Mr O'Loughlin how the job was to be done, Mr O'Loughlin "metaphorically shrugged his shoulders and said he didn't know".

93 Mr Foote said that he observed welds in six or eight places. He shouted down to a person who had been assisting Mr O'Loughlin ("Cowboy") and said "look the top section's welded, you'll have to cut this off". He said Cowboy looked at him blankly and shook his head. Mr Foote took the response as meaning "well I'm not going up there, there's no way you will get me up there". Mr Foote explained the sequence that followed:

"A. Yes, I basically put it to them, or put it to him. I said, 'well, what are you going to do, what do you want us to do' and there was more shaking of heads and mumbling and what have you and discussion down there and he basically yells up, 'you'll have to cut it then'.

Q. You saw him apparently talking to the crane driver about this.

A. And he said, 'well there's no way I'm going up there, you won't get me up there, I'm not going up' and so I yelled back down to him, 'all right, send your torch up and I'll cut it'."

94 The Judge was satisfied that Mr Foote made the decision to use the oxy-cutting equipment. That equipment was sent up on the crane. At that time, there was no equipment available to Mr Foote on the enclosure that could have assisted in preventing or extinguishing a fire. As to whether he had given any thought to the possibility of the skin catching fire, Mr Foote said it may have crossed his mind, but he did not think too much about it because he thought he was far enough away to carry out the small amount of cutting. He believed he was able to direct the spray of molten metal away from the dinosaur.

95 Mr Foote had been cutting for about 25 minutes when he noticed a small fire at the base of the neck on the back of the dinosaur. The fire was about two metres below the position in which Mr Foote was standing on the enclosure. He attracted the attention of the crane driver who brought the hook within reach. Mr Foote climbed on the bottles which were attached to the hook. The driver moved the hook closer to the dinosaur and Mr Foote jumped on to the back of the dinosaur. At that time the fire was about half a metre square and Mr Foote attempted to put it out with his gloves by patting it. However, the fire kept spreading and molten plastic was sticking to his gloves. Noxious smelling smoke was coming off into his face. Mr Foote felt overcome by smoke and jumped back on to the bottles which were on the hook of the crane. After some manoeuvring the driver lowered Mr Foote to the ground. Mr Foote unhooked the gas bottles. There were a number of fire extinguishers lying about, but the crane driver told him none of them worked. He did not see a fire hose. The Fire Service arrived some minutes later.

96 The Judge said he was confident that the account given by Mr Foote was an accurate account of the fire itself and of what Mr Foote had done.

97 On the basis of the findings to which we have referred, the Judge expressed his findings as to Mr O'Loughlin's liability in the following passage:

"I have some hesitation about whether he was liable at all but eventually have come to the conclusion that he was, to a small extent. For this reason: he had seen the dinosaur; anyone who looked at it must have realised that there was a chance it was inflammable. If so, it would be prudent to take some fire precautions, at least to have some fire extinguishers handy and to warn Foote whom he just left there doing the job, to be careful. O'Loughlin said fire didn't even occur to him, even though oxy equipment was there and being used. It should have occurred to him. He owed a duty of care to Limb (or technically Glenmont) to take care in the dismantling of the enclosure and he breached it. His failure to appreciate the risk was negligent."

98 Mr O'Loughlin challenges the finding of liability. Counsel submitted that as Mr O'Loughlin had engaged Mr Parker as an independent contractor, there was no basis in fact or in law to attribute any liability to Mr O'Loughlin for the negligence of Mr Parker or Mr Foote.

99 As to Mr Parker, in the context of a submission concerning "borrowed servants" his Honour expressed his findings as follows:

"Parker and Edwards sent Foote, with the crane and driver, to do the job. It was up to him how he did it. They held Foote out as capable and responsible. Certainly he was told to obey O'Loughlin's directions but I accept the interpretation Mr Anderson put to me, that this was what to do with the steel, how to cut it once it was on the ground, where to stack it - not as to how Foote went about dismantling, the expert work of a rigger. O'Loughlin had no idea how to dismantle the structure. Parker and Edwards from their knowledge of O'Loughlin must have known that. He made that known to Foote. There are no 'quite exceptional circumstances' by which Parker and Edwards can discharge the 'increasingly heavy' burden of establishing that Foote was 'pro hac vice the servant of' O'Loughlin.

Parker and Edwards are vicariously liable for Foote's negligence."

100 Mr Parker challenges the fundamental finding of fact made by the Judge as to the nature of the arrangement between Mr O'Loughlin and Mr Parker. Counsel submitted that the content of the negotiations, instructions given by Mr Parker to Mr Foote, ownership of oxy-cutting equipment on site and the conduct of Mr O'Loughlin on site all pointed in the one direction and combined to provide a strong case to demonstrate that his Honour was in error. He submitted that the arrangement was for the hire of labour and equipment (the crane) to work under Mr O'Loughlin's directions. In particular, while not challenging his Honour's adverse finding as to the credit of Messrs Parker and Edwards, reliance was placed upon the evidence of Mr Foote which it was argued strongly supported the case for Mr Parker. The Judge accepted Mr Foote as a credible witness. Against that background it was argued that his Honour failed to undertake a proper analysis and evaluation of the evidence and that his "incantation" that there was "much evidence and argument as to the true nature of the arrangement" did not satisfy the obligation resting upon his Honour to give adequate reasons for his finding in this regard.

101 As to the negotiations, Mr Parker said that he met Mr O'Loughlin at the Showgrounds where Mr Parker inspected the job. He said that while he was examining the enclosure, and before he had finished a quote, he had come to a figure of over $1 000 and Mr O'Loughlin said "that's too dear". While Mr O'Loughlin agreed that Mr Parker walked around the enclosure, he denied that Mr Parker spoke audibly about potential costings or that any price was mentioned. He also denied that he said words to the effect that it was going to be too expensive.

102 Notwithstanding his finding that Mr Parker was "even less reliable" than Mr O'Loughlin, and without reference to the evidence of Mr O'Loughlin on this topic, the Judge found that on site Mr Parker began making an estimate and reached over $1 000. He also found Mr O'Loughlin said that such an amount was too expensive. It was submitted that such behaviour by Mr Parker "did not point to a likelihood that Parker would subsequently agree to perform the work for $600". Counsel argued that the conduct of Mr Parker on site was consistent with his evidence that there was discussion of another way the job could be done, and with the evidence of Messrs Parker and Edwards that they only agreed to hire the services of a crane, a driver and a rigger for the day.

103 Reliance was also placed on the evidence of Mr O'Loughlin that, following the inspection of the enclosure at the Showground with Mr Parker, during a subsequent conversation Mr Parker said "you'll need a rigger and a crane for a day". It was argued that such a statement is inconsistent with Mr Parker quoting a fixed price for the whole job as the statement refers to Mr O'Loughlin's needs to do the job and not those of Mr Parker. In our opinion, however, the submission attempts to read too much into the precise wording of the statement. The evidence was given many years after the event. Even if that form of expression was used, it is not inconsistent with the view put forward by Mr O'Loughlin. He did not have any experience in demolishing or dismantling such an enclosure. He sought the assistance of persons with whom he had previously worked and who described their business as including the demolition of buildings. They had previously worked with Mr O'Loughlin and the Judge found that they probably knew from their previous business relationship with him that Mr O'Loughlin had no experience of dismantling enclosures nor any knowledge of how to go about it. Against that background, in our opinion the statement by Mr Parker as to what would be needed does not possess the significance attributed to it by Mr Parker.

104 In our opinion, the history of the negotiation considered in isolation is not of particular significance in deciding the true nature of the arrangement between the parties. Mr Parker may have endeavoured to inflate what he knew was a reasonable price for what was then believed to be the relatively straightforward task of unbolting the enclosure and bringing it to the ground. However, Mr Parker submitted that the significance of the negotiations can only properly be understood when considered in the light of subsequent events.

105 Reliance was placed upon statements made by Mr Parker to Mr Foote which it was said were part of the res gestae or could be used as evidence of Mr Parker's state of mind. Mr Foote gave evidence of a discussion the day before the fire with Mr Parker. He said:

"The only few points I can remember was that, one we were going to be doing a job tomorrow on hire for another character and it wasn't a very difficult job, it was very easy, basically there was nothing to really worry about. The fellow we were being hired to was going to look after everything and we just had to basically turn up and supply our labour and the crane".

106 In subsequent evidence Mr Foote said he was "very sure" that Mr Parker said that he and the crane driver "were being hired out as labour to Mr O'Loughlin." It was suggested to him that for the purposes of court proceedings concerning the payment of the $600 fee, Mr Parker or Mr Edwards may have emphasised to him that he was on hire. Mr Foote accepted that they probably "re-emphasised it", but said he was "fairly clear" that the day before the fire he understood "fairly clearly that we were to be on hire to Mr O'Loughlin." Under persistent cross-examination on the topic, Mr Foote agreed it was possible with the passage of time that he had confused in his mind who suggested that he was on hire to Mr O'Loughlin and when that suggestion was made. However, while conceding it was possible, he expressed his belief that he was not confused about that topic.

107 Mr Foote also said that on the day before the job was to be done, Mr Parker told him he was to follow the instructions of Mr O'Loughlin and to do whatever Mr O'Loughlin said.

108 In our opinion, the statements by Mr Parker to Mr Foote were not part of the res gestae. They were, perhaps, admissible as original evidence of Mr Parker's state of mind or belief at that time: Hughes v National Trustees, Executors and Agency Co. of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134 at 149. At that time, there was no occasion for Mr Parker to be concerned about the implications of his statements: cf R v Szach (1980) 23 SASR 504, Wells J at 526 and 527. The existence of a particular belief is capable of supporting an inference as to the facts of the arrangement between Mr Parker and Mr O'Loughlin.

109 While the statements of Mr Parker were capable of supporting the view that he believed the arrangement was only for the hire of a crane and a rigger to work under the supervision of Mr O'Loughlin, statements by Mr O'Loughlin to Mr Limb as to the arrangements he had made with Mr Parker were similarly admissible as original evidence of Mr O'Loughlin's state of mind. Those statements to which we have already referred were capable of supporting an inference that Mr O'Loughlin believed that he had reached agreement with Mr Parker for the latter to dismantle the enclosure.

110 Bearing in mind the time that had elapsed between the conversations and the trial, and in view of his Honour's finding that Mr Foote was persuaded to sign a statement dated 12 November, 1985 which was "slanted" in a way which placed responsibility with Mr O'Loughlin, in our opinion considerable caution should be exercised before placing significant weight upon the statements as evidence tending to support the case for one party or the other.

111 As to the events on site, the written and oral submissions presented on behalf of Mr Parker placed considerable emphasis on the question as to what cutting equipment was brought on site and by whom. The Judge found that, however it got there, "oxy-acetylene and oxy-LPG equipment was on the job: some belonged to Parker and Edwards, some to O'Loughlin." That finding is challenged on the basis that the credible evidence did not support the presence of oxy-acetylene equipment belonging to Mr Parker. It was argued that his Honour should have found that the only cutting equipment on site was equipment that belonged to Mr O'Loughlin. As to the significance of the issue, the written submissions were:

"O'Loughlin's assertion that the oxy bottles came from Parker and Edwards was a transparent attempt to sheet home responsibility to Parker and Edwards. An admission by him that Parker and Edwards had supplied no equipment would be inconsistent with his version as to the basis upon which the job was being undertaken, or at the very least, that would be O'Loughlin's perception."

112 During oral submissions, counsel acknowledged that Mr O'Loughlin was expecting to cut steel after the enclosure had been dismantled. In those circumstances, and notwithstanding Mr O'Loughlin's denial that he brought his own cutting equipment onto the site, an admission by Mr O'Loughlin that he and not Mr Parker had supplied cutting equipment was not inconsistent with Mr O'Loughlin's version. The issue was relevant only to Mr O'Loughlin's credit.

113 Mr Foote said that in his experience on jobs for Mr Parker, only oxy-acetylene cutting equipment was used and not oxy-LPG. The only equipment used on site was oxy-LPG. According to Mr Foote, neither he nor the crane driver brought oxy equipment from the premises of Mr Parker and, when he arrived, Cowboy was already using oxy equipment to cut part of the frame that had been dismantled.

114 Mr O'Loughlin gave a different version. He said that on the day of the job, he went to Mr Parker's yard and was asked to take some tools of trade to the job. He took some oxy bottles, the oxy-cutter and spanners. The LPG bottles were from Mr Parker's yard. According to Mr O'Loughlin, when he arrived at the Showgrounds the crane and the rigger were already present. He said there was "no prospect" that Cowboy had set up the cutting equipment and was cutting steel at the time the rigger and the crane arrived. He said Cowboy did not cut up any steel on the ground while he was present. The Judge accepted, however, that when Mr Foote arrived Cowboy was using oxy equipment to cut steel already on the ground. According to Mr O'Loughlin, it was Mr Parker's task to do whatever cutting was necessary to get the steel to the ground, but once it was on the ground it would be up to Mr O'Loughlin whether he wished to carry out any further cutting. Mr O'Loughlin acknowledged that from his initial inspection it appeared to him that some of the lengths of steel would require cutting on the ground.

115 The basis upon which the Judge found that both oxy-acetylene and oxy-LPG equipment were on the job is not easy to discern. It may be that his Honour accepted the evidence of Mr Foote that when he arrived Cowboy was already cutting steel on the ground and that such cutting could only have been done by equipment belonging to Mr O'Loughlin. His Honour may have also accepted that Mr O'Loughlin took some equipment from the premises of Mr Parker at the latter's request.

116 It would have been preferable if the Judge had analysed the conflict and explained how he reached his conclusion, but in our opinion any deficiency in this regard is not particularly significant. It follows from his Honour's conclusion that some equipment belonging to Mr O'Loughlin was present and that his Honour did not accept Mr O'Loughlin entirely in this regard. It also follows that his Honour did not accept all of Mr Foote's evidence on this topic. There is no basis for concluding that his Honour was not alive to the significance of these matters when determining the nature of the arrangement reached between Mr O'Loughlin and Mr Parker.

117 In attacking the finding of the Judge as to the nature of the arrangement, counsel also placed particular emphasis upon the evidence of Mr Foote as to what occurred at the outset of the work on site. As we have mentioned, Mr Foote gave evidence that when he first arrived he asked Mr O'Loughlin what was to be done and Mr O'Loughlin spoke of dismantling the enclosure into individual pieces. In addition, Mr Parker's employees carried out work for Mr O'Loughlin in loading the wheels onto the truck. In essence it was argued that Mr Foote looked to Mr O'Loughlin for instructions as to how to carry out the task. However, Mr Foote gave the following evidence in cross-examination:

"Q. Do I take it that he [Mr O'Loughlin] simply showed you where it was, indicated that, as far as he was aware, it was to be unbolted, then he left.

Mr Foote was asked whether Mr O'Loughlin left him to his own devices. Mr Foote said:

"He said it would be fairly straightforward and I remember saying something to the effect of 'well, how are we going to go about it' and he said something to the effect of 'I don't really know'."

118 It was also suggested that Mr O'Loughlin confirmed that Mr Foote looked to him for instructions as to what to do in order to dismantle the enclosure. Having read the evidence of Mr O'Loughlin, in our view that is not a fair interpretation of what he said. According to Mr O'Loughlin, when he arrived on site Mr Foote asked him what he wanted put on the truck first. He identified the wheels. Asked specifically whether there was any conversation about directing them how to dismantle the enclosure or anything like that, Mr O'Loughlin said:

"A. They asked me what I wanted first and I said I wanted the wheels and I'd like the steel in as long as possible because it's resaleable that way."

Mr O'Loughlin said they were the only instructions or directions that he gave.

119 We have not endeavoured to canvass all the evidence and submissions that bear upon the challenge to his Honour's finding. However, having considered the submissions and the evidence, in our opinion the evidence considered in its entirety was capable of supporting both the conclusion reached by the Judge and the opposing conclusion for which Mr Parker contended. The occupations of the parties and the background of their involvement in previous business dealings strongly supported the conclusion reached by the Judge. In addition, although his Honour rejected the evidence of Mr O'Loughlin in certain respects, he generally preferred the credibility of Mr O'Loughlin to that of Mr Parker and Mr Edwards. There was an ample basis upon which his Honour was entitled to find that each of Mr Parker and Mr Edwards was "quite dishonest and prepared to say anything which might, he thought, help his own position".

120 In our opinion, notwithstanding the evidence that was capable of supporting the opposite conclusion, there was sufficient evidence to justify the conclusion reached by the Judge as to the arrangement between Mr O'Loughlin and Mr Parker. We are not persuaded that the trial Judge misused the advantage he possessed in seeing and hearing the witnesses or that he misunderstood or failed to analyse the evidence properly. Bearing in mind the well known principles enunciated by the High Court in Devries, we are not persuaded that the finding of the Judge as to the nature of the arrangement between Mr O'Loughlin and Mr Parker should be set aside.

121 Counsel for Mr Parker submitted that if the arrangement between Mr O'Loughlin and Mr Parker was one for the hire of a rigger and a crane with its driver for the day, liability for the negligence of Mr Foote rested with Mr O'Loughlin. It is not necessary for us to deal with this submission, because we have concluded that the Judge's approach was correct. Nevertheless, it is convenient to do so.

122 The submission advanced by Mr Parker on this footing must confront the fact that even if the arrangement was one for the hire of labour, Mr Foote remained the employee of Mr Parker, and some basis must be identified for imposing liability for Mr Foote's negligence on Mr O'Loughlin. Before the Judge, and on appeal, counsel for Mr Parker submitted that the present case is one in which the effect of the arrangement was to transfer responsibility for the negligence of Mr Foote from Mr Parker to Mr O'Loughlin. As the Judge said, the effect of the authorities is that it is difficult for an employer to show that a person to whom the services of an employee are made available is liable for the negligence of the employee in the course of performing those services. There are a number of sound reasons for the approach that the courts have taken to this issue, and it is not necessary to canvass them here.

123 The Judge found that the arrangement was one under which Mr Foote was to accept Mr O'Loughlin's directions about what to do with the steel once it was on the ground, but not about the process of dismantling. As the Judge said, dismantling was within the province of Mr Foote, who was a rigger. It was something on which Mr O'Loughlin had no particular knowledge.

124 If the test to be applied in deciding whether Mr O'Loughlin became liable for Mr Foote's negligence is expressed by asking who had the authority to tell the worker how to do the job, the Judge's conclusion is fatal to the contention advanced for Mr Parker. However, one must acknowledge that had Mr O'Loughlin been present when Mr Foote unexpectedly found that some of the steel was welded, it is not easy to say how a decision would have been reached about what should be done. Counsel for Mr Parker submitted that when the unexpected arose, the decision to be made was the responsibility of Mr O'Loughlin. It suffices to say that we do not accept that submission. That is not to say that we consider that Mr O'Loughlin's views would have been disregarded by Mr Foote. However, Mr Foote was the rigger on the job with the responsibility of working with the crane driver to demolish the enclosure. We are inclined to think that if a decision had to be made, it was in the end one to be made by Mr Foote, if necessary by consulting further with his employers. It suffices to say that we are not satisfied that the Judge was wrong in concluding that even if the arrangement was a labour hire arrangement, Mr Parker had failed to discharge the onus of proving that responsibility for the negligence of Mr Foote was transferred to Mr O'Loughlin.

125 Accordingly, even if the arrangement was a labour hire arrangement, as distinct from a contract to produce a result, we would not reverse the Judge's conclusion that Mr Parker remains liable for the negligence of Mr Foote.

126 The liability of the parties must be determined, therefore, on the basis that Mr O'Loughlin retained the services of Mr Parker to dismantle the enclosure. He said he asked them to be careful and to do whatever was necessary to carry out the job. He said he asked them to be careful because there was a lot of other equipment present that did not belong to Mr O'Loughlin or to Mr Parker. Liability must also be determined on the basis of the finding by the Judge that Mr O'Loughlin did not give any instructions as to how the task was to be carried out and that it was Mr Foote, in the absence of Mr O'Loughlin, who made the relevant decisions, including the decision to use the oxy-cutting equipment.

127 On the basis of those findings, in our opinion the Judge was correct in finding that Mr Parker was vicariously liable for the negligence of Mr Foote. In the absence of any instruction by Mr O'Loughlin which was followed by Mr Foote and caused the loss, as Mr Parker was engaged by Mr O'Loughlin as a contractor there is no basis for attributing to Mr O'Loughlin the negligence of Mr Parker's employee in carrying out the work.

128 However, the basis upon which the Judge found that liability attached to Mr O'Loughlin is not as readily apparent. His Honour appears to have found that, because anyone who looked at the dinosaur must have realised there was a chance it was inflammable, it would have been prudent for Mr O'Loughlin to take fire precautions and to warn Mr Foote to be careful. The Judge found that the risk of fire should have occurred to Mr O'Loughlin and that "his failure to appreciate the risk was negligent". That finding apparently led his Honour to conclude that Mr O'Loughlin was in breach of his duty to take care in the dismantling of the enclosure.

129 The conclusion drawn by the Judge faces a number of difficulties in view of his finding as to the nature of the arrangement with Mr Parker. His Honour found that Mr O'Loughlin hired Mr Parker as an independent contractor to carry out the dismantling and that Mr Foote was the employee of Mr Parker. In addition, it was not part of the arrangement that Mr O'Loughlin would supervise the work of Mr Foote and he did not do so. Mr O'Loughlin did not undertake any responsibility in that regard.

130 In support of the finding of the Judge, counsel for Glenmont submitted that there was ample evidence to support findings that Mr O'Loughlin owed a duty of care to Glenmont and was in breach of that duty. In particular, knowing that there was a risk of damage being caused to the dinosaur and that Mr Parker would be supplying a rigger and a crane, Mr O'Loughlin left the site without taking any steps to ensure that either oxy-cutting was not carried out or that if it was, appropriate safety precautions were taken. In the alternative, the written submissions contended that it would have been open to the Judge to have "visited liability" upon Mr O'Loughlin as a result of the negligence of Mr Parker because the relationship and circumstances gave rise to a non-delegable duty.

131 On the assumption that the duty owed by Mr O'Loughlin was not a non-delegable duty, counsel for Glenmont argued that Mr O'Loughlin could not escape liability through the employment of the independent contractor. He said that Mr O'Loughlin was present at the site overseeing the performance of the contractor and was in breach of his duty to Glenmont in leaving the scene and not remaining to supervise the work and give appropriate instructions. In answer to the proposition that, usually, if a person in the position of Mr O'Loughlin retained a competent and independent contractor that person could leave the scene and leave the job in the hands of the contractor, counsel submitted that the contract was for the one operation involving the sale and dismantling of the enclosure and Mr O'Loughlin was required to be present. As instructions had been given that an oxy torch was not to be used, Mr O'Loughlin had a duty to be present and to supervise the whole operation.

132 There can be no doubt that Mr O'Loughlin owed to Glenmont a duty to exercise reasonable care not to damage the dinosaur when removing the enclosure that he had purchased. The enclosure was in close proximity to the dinosaur. It was obvious that if care was not taken when removing the enclosure, damage might be caused to the dinosaur. That is a sufficient basis to impose a duty of care.

133 We put aside for one moment the question of whether the duty of care arose as an express or implied term of the contract between Mr O'Loughlin and Glenmont for the sale and purchase of the steel and for its removal, or whether the duty of care is one imposed by the law of tort.

134 The Judge found that when Mr Foote was removing the enclosure in the course of carrying out the contract between Mr O'Loughlin and Mr Parker, the dinosaur was damaged by Mr Foote's negligence. Mr Foote was an employee of Mr Parker who, in relation to Mr O'Loughlin, was an independent contractor. Mr Parker was not an employee of Mr O'Loughlin; nor was Mr Foote, either generally or for the purposes of the particular task at hand.

135 On this analysis of the situation, Mr O'Loughlin is not liable for the damage done to the dinosaur. On the Judge's findings, Mr O'Loughlin did not directly or indirectly authorise the negligent act which caused the damage to the dinosaur. The work being done when the damage was caused was being done for Mr O'Loughlin's benefit, but because it was being done by an independent contractor, Mr O'Loughlin is not vicariously liable for the negligence of the independent contractor. As Dixon J said in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41 at 48:

"In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal."

Nevertheless, the Judge found that Mr O'Loughlin was liable. As we have already said, the basis of his finding, found in one short paragraph in his reasons, is that the failure to appreciate the risk of fire, to ensure that precautions were taken and to warn Mr Foote against the risk, amounted to negligence.

GLENMONT INVESTMENTS PTY LTD v O'LOUGHLIN & ORS No. SCGRG-91-2240 [2000] SASC 429

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Decision date

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Judgment (688 paragraphs)

GLENMONT INVESTMENTS PTY LTD v O'LOUGHLIN & ORS No. SCGRG-91-2240 [2000] SASC 429 (20 December 2000)

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Legislation Cited (4)

Cases Cited (30)