Hourani v Siemsen Group P/L, Censeo P/L and Nidus Inspection Services P/L

District Court of NSW|2012-09-27|Before: Siemsen Group P, Censeo P, Inspection Services P

Table of Contents Nature of case [1] - [6] Issues [7] - [8] Matter arising from plaintiff's pleadings [9] - [10] Facts [11] - [12] Consideration of Issue 1 - Limitation defences [13] - [21] Consideration of Issue 2 - Inherent or obvious risk [22] - [29] Consideration of Issue 3 - Liability of Siemsen [30] - [49] Consideration of Issue 4 - Liability of Censeo & Nidus [50] - [79] Consideration of Issue 5 - Contribution [80] Conclusions [81] Disposition [82] Costs [83] Orders [84]

Nature of case 1These proceedings which were filed on 4 May 2011, were heard together with proceedings numbered 2010/100380, the latter proceedings having been filed on 26 February 2010. In these proceedings, the plaintiff relies upon her second further amended statement of claim, filed on 9 March 2012. 2In the plaintiff's first proceedings, which were brought against her home and contents insurer, Insurance Australia Group Pty Ltd trading as NRMA ["IAG"], the plaintiff sought damages for personal injuries as a result of a fall that occurred at her home on 6 February 2008. 3Those first proceedings did not involve a claim under the plaintiff's home and contents policy, but instead, claimed that IAG had been in breach of the claimed duty of care it owed to the plaintiff to arrange for timely inspection and repairs to her storm damaged premises. 4Following a consideration of the issues in those first proceedings, it was determined that there should be a verdict and judgment for the defendant: Hourani v Insurance Australia Group Pty Ltd [2012] NSWDC 202. 5In the present proceedings, in which evidence taken in the other proceedings was taken to be evidence in these proceedings, and where the damages claimed by the plaintiff were the same as the damages claimed in the proceedings against IAG, the plaintiff also sues IAG's delegated builders, inspectors and sub-contractors, Siemsen Group Pty Ltd ["Siemsen"], Censeo Pty Ltd ["Censeo"] and Censeo's subsidiary, Nidus Inspection Services Pty Ltd ["Nidus"], claiming that in addition to the alleged liability of IAG, these entities were also responsible for her claimed injuries, losses and damages. 6As the two sets of the plaintiff's proceedings had not been consolidated, two separate judgments are required. The provisions of the Civil Liability Act 2002 govern the consideration of the issues raised in these proceedings.

Issues 7There is a commonality of some of the issues in these proceedings and the issues in the underlying proceedings against IAG. Those common issues are contributory negligence, causation, and the quantum of damages. Those three issues of commonality are dealt with in my reasons for judgment in the underlying proceedings. The issues for determination in these proceedings can be conveniently stated to be as follows: Issue 1 - Whether the plaintiff is precluded from maintaining her proceedings against the present defendants as a consequence of a claimed limitation bar raised, pursuant to s 50C of the Limitation Act 1969. My conclusions on this issue appear between paragraphs [13] to [21] of these reasons; Issue 2 - Whether the risk of injury to the plaintiff was an inherent or obvious one in the circumstances, within the meaning of the provisions of sections 5F to 5I of the CL Act. My conclusions on this issue appear between paragraphs [22] to [29] of these reasons; Issue 3 - Whether Siemsen should be found liable to the plaintiff in negligence arising from its inspection of the plaintiff's damaged home. My conclusions on this issue appear between paragraphs [30] to [49] of these reasons; Issue 4 - Whether Censeo and Nidus should be found liable to the plaintiff in negligence arising from their inspection of the plaintiff's damaged home. My conclusions on this issue appear between paragraphs [50] to [79] of these reasons; Issue 5 - The extent of contribution between defendants, if any, on the cross claim. My conclusions on this issue appear at paragraph [80] of these reasons. 8Before addressing these issues, and the facts to which they relate, it is necessary to deal with a matter raised by the defendants concerning the plaintiff's pleadings.

Matter arising from plaintiff's pleadings 9In their submissions, the second and third defendants have raised a pleading point against the plaintiff. It is claimed that the plaintiff's pleading is deficient, in that it is in effect, amorphous, as it does not identify the nature of the alleged duty of care, owed to her. 10Whilst that submission might ordinarily carry force, given the way in which the case was conducted, I do not consider the point so raised to be crucial. This is because whilst the plaintiff's pleading was relatively brief and uninformative of the claimed duty owed, it was clear from the evidence and arguments, that no prejudice to those defendants relevantly arose if the pleading point were to be overlooked as an irregularity in this instance: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491.

Facts 11The underlying facts that are common to both sets of proceedings are adequately set out in the reasons for judgment in the other proceedings and therefore do not need to be restated here: Hourani v Insurance Australia Group Pty Ltd [2012] NSWDC 202 at paragraphs [18] to [84]. As identified at paragraph [17] of the related proceedings, I consider that no credit issues relevantly arise in these proceedings. 12I now turn to my consideration of the issues that require determination.

Consideration of Issue 1 - Limitation defences 13Each of the three defendants invoked pleaded limitation defences to the claims made against them by the plaintiff. In the paragraphs that follow, I set out my considerations and conclusions concerning those limitation defences.

Claimed limitation defence by Siemsen 14Siemsen relies upon s 50C of the Limitation Act 1969 as a defence to the plaintiff's claim and argues that as the plaintiff filed her claim against it outside the three year post-discovery limitation period, the plaintiff's claim is therefore statute barred. Siemsen bears the onus of proof concerning discoverability: State of New South Wales v Gillett [2012] NSWCA 83 at [26]. 15In this regard, the only live question that has been identified is whether, in February 2008, the identity of Siemsen was known to the plaintiff. As the plaintiff's statement of claim was filed 9 May 2011, if Siemsen's contention is correct, the plaintiff could not maintain her present claim against Siemsen. 16My finding is that it was not until 28 July 2008, when Siemsen sent the plaintiff a copy of Exhibit "D" comprising the suggested scope of the repair works for the storm damage, that the plaintiff became aware of the existence of Siemsen entity as a delegated agent of NRMA. In my view, without further evidence to link the plaintiff's knowledge of Siemsen to the earlier NRMA file notes in evidence, those notes must be seen as being self-serving summaries that do not establish that the plaintiff was aware of the existence of Siemsen as a delegated agent of NRMA. 17I find that the facsimile comprising Exhibit "D" was in fact received by the plaintiff on or shortly after the date stated. It therefore follows that Siemens has not made good its limitation defence that the plaintiff has brought her proceedings against it more than three years after the discoverability period as provided by s 50C of the Limitation Act 1969. I therefore find that the plaintiff's claim against Siemsen is not statute barred.

Claimed limitation defences by Censeo and Nidus 18In my view the limitation defence raised on behalf of Censeo and Nidus can be disposed of in short form. 19The present proceedings against Siemsen were filed on 4 May 2011. The affidavit of Katia Falco sworn 25 September 2011 establishes that the plaintiff became aware of the Censeo and Nidus entities during the discovery and inspection process in 2011 and 2012 respectively, which resulted in progressive amendments to the plaintiff's statement of claim, which in turn joined Censeo and Nidus as defendants. 20It follows that until 2011, and 2012, respectively, the plaintiff should not be taken to have been aware of those entities as relevant participants in the events in question so as to enliven the limitation defence claimed by Censeo and Nidus. 21I find that the plaintiff is entitled to maintain her claims against Censeo and Nidus. Those claims therefore stand to be assessed on their merits.

Consideration of Issue 2 - Whether inherent or obvious risk 22On behalf of Censeo and Nidus, it was argued that the un-pleaded CL Act defences of obvious risk and materialisation of an inherent risk apply to the circumstances of the plaintiff's case: s 5F, s 5H and s 5I of the CL Act. Notwithstanding the submission to the contrary, those defences, if they are available on the facts, must be applied as a matter of law, irrespective of whether they have been pleaded. 23The question of the obviousness of the risk of injury in the circumstances arises because, by paragraphs [9(e)] to [9(g)] of the plaintiff's further amended statement of claim, relevant failures are alleged concerning appropriate warnings that should have been given by the defendants as to the state of the premises, and the prospect of further water entry into the premises. 24In this regard, the starting point of the analysis of this issue is the fact that between the initial storm damage on 9 December 2007 and the further storms on 4 and 5 February 2008, the plaintiff chose to remain in her premises. She did so at a time when the extent of the damage to the roof had not yet been accurately surveyed or fully identified, and the scope of the repair works had not yet been identified and specified, or at least communicated to her. In that time, there was no evidence that water had leaked onto the floor of her living room where her injuries ultimately occurred. 25It was not until the living room ceiling became water logged, swollen and then collapsed internally on 5 February 2008 that the plaintiff became aware of the dangerous condition of the floor of her living room due to the presence of ceiling debris and leaking rainwater, thus rendering the floor of that room slippery. 26In these circumstances, the need for a warning did not relevantly arise as it is clear that the plaintiff knew or ought to have known of the slippery condition of the floor in question, and neither sought nor needed advice on that subject matter: s 5H of the CL Act. 27However, in my view, for the reasons that follow, I consider that the plaintiff's injury did in fact arise as a result of the materialisation of an inherent risk, which avoids liability in the defendants for their claimed negligence, if such negligence can be shown to have existed: s 5I(1) of the CL Act. 28The reasons for upholding a defence under s 5I can be simply put. First, because the plaintiff remained in the house after becoming aware of the ingress of water onto the living room floor following the further storms of February 2008, she must be taken to have known that the floor in question was wet, and therefore slippery to walk upon. Secondly, by walking across her living room on the wet and slippery floor in order to answer a telephone call, the plaintiff took the chance that the inherent risk of slipping on that wet and slippery floor would materialise, which it unfortunately did. 29I now turn to a consideration of whether the relevant duties of care and alleged breaches of such duties, as claimed by the plaintiff, have been made out.

Consideration of Issue 3 - Liability of Siemsen 30Critically, it was submitted on behalf of Siemsen, that the plaintiff's claim against Siemsen seems to be based upon an implied assertion that a relevant duty of care existed in order for the alleged breach of duty to be pleaded in paragraph [9] of the plaintiff's further amended statement of claim. In favour of that submission it is apparent that the plaintiff's pleading is certainly brief and largely uninformative of the duty of care claimed to have been owed. 31However, that said, in my view, this case falls into an extension of those categories of envisioned tort cases involving personal injury where the factual scenario relied upon by the plaintiff gives rise to an obvious implication of a well understood duty of care capable of ready analysis of the evidence according to commonsense, having regard to the relationship of the parties: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13]. 32Accordingly, I will proceed to analyse the claims made by the plaintiff against Siemsen, commencing with a formulation of what I understand to be the scope or content of the implied duty of care argued by the plaintiff. 33The plaintiff argued that as the NRMA notes referred to Siemsen as "our builder" in connection with discussions with Mr Willis on behalf of the plaintiff, and as the plaintiff did not become aware until after her injury that Siemsen was an independent contractor, it should be accepted that the plaintiff believed that the persons attending to assess the damage for the insurance claim were part of NRMA. 34In my view, although the context of the use of the term "our builder" was that it was an expression in the form of a loose summary, and should not be taken to represent an admission that Siemsen was part of NRMA, it nevertheless follows from the circumstances of the claim and from the attendance of assessors at the plaintiff's home, as a result of the arrangements with Siemsen, that Siemsen should be taken to be the agent of NRMA in its dealings with the plaintiff, with the ostensible authority of NRMA. 35The plaintiff has submitted that there was scant material from which to acceptably find or infer that the entities Siemsen, Censeo or Nidus were, to the plaintiff's knowledge, sub-contractors to NRMA. In my view, that submission should be accepted. 36This then leaves the question of whether Siemsen should be found to be in breach of a duty of care it owed to the plaintiff thereby resulting in her injuries. 37The formulation implicit in the approach taken on behalf of the plaintiff is that Siemsen had a duty to arrange a timely inspection of the damage to the plaintiff's roof, identify the nature, extent and foreseeable effects of leaving the damage in disrepair or not waterproof. The claim is that if that duty had been adhered to, it would have avoided the plaintiff's injury in this instance. 38On this issue, Siemsen complains that it is difficult to respond to such a submission when the plaintiff's pleading does not address the matters required by s 5B of the CL Act. Whilst there is force in that complaint, given the way in which the parties proceeded, and given that the plaintiff has alleged negligence against Siemsen, I consider that the matters raised can be adequately addressed by assessing the evidence by using s 5B of the CL Act as an overlay template, applying the appropriate prospective analysis required by Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442. 39On behalf of Siemsen, it was submitted that the risk of the plaintiff slipping on the wet floor of her living room was not foreseeable in the sense that s 5B of the CL Act directs the analysis. In this regard, the plaintiff must show that a reasonable contractor in the position of Siemsen would have recognised the risk as being significant, such that precautions would be required to be taken against that risk materialising: s 5B(1) of the CL Act. 40In my view Siemsen's submission on this point should be accepted. I consider that this is so because when Siemsen attended to assess the plaintiff's damaged roof, it was apparent to the assessor that it was not raining at the time, a tarpaulin covering had been placed onto part of the damaged roof, and there was no evidence to suggest that at that time, water had leaked or was likely to leak into the house to either cause the ceiling to become wet or for the floor to become wet and slippery. At that time all that Siemsen was required to do was to identify the nature of the damage with a view to determining what should be done next as the extent of the required repairs to the damage sustained in the 9 December 2007 storm was clearly outside Siemsen's delegated authority of $5000. 41Siemsen had a duty to make a report of the damage to NRMA. In my view it was reasonable that the nature and approximate extent of the damage was initially assessed by an assessor by viewing the damaged roof tiles from the ground without undertaking the more dangerous task of climbing onto the damaged roof, especially without having safety equipment available to assist in that task. 42In these circumstances, given that the SES had already taped some cracked tiles and a tarpaulin was in place, on the state of the information that was available to the plaintiff and the assessor at that time, I consider that the assessor had acted reasonably and not contrary to the claimed duty of care in not climbing onto the roof in order to more precisely identify the nature and the extent of the damage at that time. This was especially so having regard to the evidence of the sheer number of claims that the storms of 9 December 2007 had apparently generated. 43In this regard, I consider that a reasonable contractor in the position of Siemsen, or Censeo or Nidus for that matter, was entitled to consider that, in the absence of evidence of internal water penetration into the premises following a violent storm, that the premises would very likely remain free from water penetration from subsequent rainfall, absent the occurrence of any further damage from subsequent storms: s 5B(2)(a) of the CL Act. 44Furthermore, Siemsen was also entitled to expect that the plaintiff would act reasonably in her occupation and use of her storm damaged premises, and that if future water penetration occurred, she would be expected to take reasonable care and precautions when traversing floors that may become wet and slippery, thus indicating that it was unlikely that serious harm in the form of personal injury to the plaintiff might ensue: s 5B(2)(c). 45For the position to be otherwise, Siemsen would have had to have arranged for a detailed roof inspection at that initial stage, and surveyed the likelihood of water penetrating into the house due to anticipated further rainfall absent damage from further storms. Given that such a course would have involved climbing onto the roof with a need for safety equipment at that early triage stage of the assessment of the damage, I consider that this was too burdensome on Siemsen in the circumstances of that initial triage assessment: s 5B(2)(c) of the CL Act. 46In my view, the absence of water penetration onto the living room floor immediately following the 9 December 2007 storms, and the continuation of that circumstance until the relevant inspections, did not suggest that water was very likely to penetrate the premises and render the floors wet and slippery in the absence of additional storm damage from later occurring storms. 47This is a further difficulty in the path of acceptance of the plaintiff's claim against Siemsen. The fact of the occurrence of the further storms on 4 and 5 February 2008 and the absence of any evidence that the damage from the storms of 9 December 2007 was the probable cause of the water entry on 4 and 5 February 2008, without further damage having arisen from these latter storms, represents an evidentiary obstacle in the path of acceptance of the plaintiff's claim. Furthermore, there is no evidence that the damage to the roof from the 9 December 2007 storms could have been repaired before the storms of 4 and 5 February 2008 to produce a materially different outcome for the plaintiff. 48Siemsen appointed Censeo and Nidus as apparently competent contractors to carry out the necessary inspection works. Whilst that may appear to have been a cumbersome arrangement, there is little if any room for doubt that any required work would have taken time to appropriately scope, cost and execute, including at a time when the end of year holiday season was extant, and there would obviously have been some considerable difficulties in organising tradespeople to promptly carry out the required repair works. This much is evident from the time it actually took to complete the works. 49For the foregoing reasons, I consider that the plaintiff has failed to establish liability in negligence on the part of Siemsen.

Consideration of Issue 4 - Liability of Censeo and Nidus 50The liability of Censeo and Nidus is capable of being considered and assessed jointly, as Nidus is a subsidiary of Censeo, and they each have the same interests in this litigation. 51Essentially, the plaintiff's claim against Censeo and Nidus is that they failed, after the inspection carried out on 3 January 2008, to adequately advise NRMA of the urgency required for the restoration and repair of the plaintiff's roof, following damage from the storm on 9 December 2007. 52An assessment of the sense of urgency required to repair the roof must be gauged by an assessment of the risk of water ingress. All participants knew that tiles had been damaged, some tiles had been taped by the SES, and a tarpaulin was in place pending repairs. 53In these circumstances, there was no communicated sense of urgency for the proposed repairs, either from a safety perspective or any other perspective. It is against those circumstances that the plaintiff argued that Censeo and Nidus failed to advise NRMA of a due sense of urgency for the repairs to the damaged roof. 54Naturally, it can be accepted as a given, that as the homeowner, the plaintiff would have liked to have the repairs carried out to her roof as soon as practicable. It also has to be accepted that during the time the repairs remained outstanding, it was possible that further storms could cause further damage to the roof. It also has to be accepted that a roof with damaged tiles was more vulnerable to water ingress than would be the case with an undamaged roof. 55Accepting these propositions, the due sense of urgency on the part of the assessors, the builder and the insurer has to be considered in the context of a number of matters. These included the fact that the SES having applied tape to some damaged tiles, the fact that a tarpaulin had been placed on part of the roof, and that there was no evidence of water entering the living areas of the house before 4 February 2008. 56The due sense of urgency also has to be assessed in the light of the need to obtain replacement tiles and any other materials for the required repairs, and for the appropriately skilled labour to be on hand to have the required works carried out. There was no evidence that the required works would have been completed between the period following the inspection on 3 January 2008 and the further storm on 4 February 2008. 57Putting to one side the pleading point which I have already considered at paragraphs [9] - [10] above, noting that similar considerations apply here, it was submitted on behalf of Censeo and Nidus that the duty of care the plaintiff claims was owed to her by these entities, involved a novel cause of action to which the salient, but non-exhaustive and non-prescriptive features were identified for consideration by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, at [102]-[103] apply. Paragraphs [102]-[103] of that decision provide as follows: "102. This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. 103. These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. " 58Further guidance to the task of the assessment of whether a relevant duty of care exists in particular circumstances of novelty is to be found in the remarks of Basten JA, who stated that the above multi-factorial assessment of the salient features should not be treated as a prescriptive "shopping list": Caltex Refineries (Qld) Pty Ltd v Stavar, at [172]. I take this to mean that a global contextual assessment is required. 59It is a given that for a relevant duty of care to exist, the party sought to be burdened with the argued duty must be shown, amongst other things, to have some element of control of the relevant circumstances: Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; (2009) 171 LGERA 165, per Hodgson JA at [21]. 60Matters such as the contractual arrangements between the parties are not necessarily determinative of the existence of a relevant duty of care, although generally, the terms of the retainer would ordinarily be a factor limiting liability: Al Mousawy v Howitt-Stevens Constructions Pty Ltd [2010] NSWSC 122, per Hoeben J, at [79]. Instead, the statutory template within the terms of s 5B of the CL Act provides the relevant parameters for assessing the scope of liability, with the factors listed in Caltex Refineries (Qld) Pty Ltd v Stavar providing the relevant framework. 61This is the context in which the assessment of the claim by the plaintiff that both Censeo and Nidus, or either of them, owed her a relevant duty of care to arrange immediate repairs of the damage caused in the storm on 9 December 2007, along with the claim that appropriate warnings should have been given to Siemsen and NRMA as to the urgency of such repairs, and a concomitant warning to the plaintiff as to the dangerous condition of her premises, must proceed. The required consideration is as follows.

Foreseeability and nature of harm in question 62In the context of a claim for personal injury, I do not consider that it was reasonably foreseeable that if Mr Bee on behalf of Censeo and Nidus had not organised repairs to the plaintiff's storm damaged premises on or shortly after 3 January 2008, that there would be a significant ingress of water as in fact occurred one month later, and that as a result, the plaintiff would slip and fall and sustain bodily injury. There was no evidence to suggest that internal damage had been occasioned to the house or water proofing structures of the roof that indicated a need for urgent repairs at that time. Accordingly, I do not consider that a reasonable person or contractor in the position of Censeo or Nidus would have taken the precautions argued on behalf of the plaintiff: s 5B(1) of the CL Act.

Degree and nature of control by Censeo and Nidus 63Censeo claims that it had no direct role to play in the inspection of the plaintiff's premises and has therefore been incorrectly joined to the proceedings. I consider that submission is too simplistic in that Censeo had been appointed by Siemsen to arrange for an inspection of the property. 64That said, the Censeo and Nidus entities undertook an inspection in order to prepare a report to identify the scope of the required works for Siemsen. Nidus completed the inspection following a walk around ground inspection and prepared its report accordingly. From that point, Nidus and Censeo had no further involvement in the programming of the works that were proposed for the premises. At that time, neither Nidus nor Censeo were in a position to assess or advise that the required works were urgent. The ultimate decision on whether the works should proceed, and the timing for completion, was a matter to be decided between NRMA, the plaintiff on the one hand, and either Siemsen or some other agreed builder on the other. Either way, neither Censeo nor Nidus had any relevant degree of control of the process: s 5B(1)(c) of the CL Act.

Degree of vulnerability of plaintiff to harm 65On behalf of Censeo and Nidus, it was submitted that the plaintiff was not vulnerable to harm arising from the defendants' conduct. In this regard, it was argued that the plaintiff was perfectly capable of taking steps to protect herself by organising a tarpaulin to be placed over the area where a broken tile was located on her roof, as well as contacting the NRMA on a regular basis to enquire as to the progress of her insurance claim, as in fact occurred. Furthermore, it was pointed out on behalf of Censeo and Nidus, that the plaintiff had placed herself into a situation of danger by walking across the wet and slippery floor. I accept those submissions concerning this feature of the required assessment as they are borne out of the facts. Neither Censeo nor Nidus could have reasonably foreseen that this injury would occur in the circumstances: s 5B(2)(a) of the CL Act.

Reliance by plaintiff 66There is no evidence that the plaintiff had placed any reliance upon the products of inspection by Nidus or the report by Censeo. This is proven by her own evidence that she did not accept the adequacy of the Nidus assessment that there were only 30 broken tiles on her roof. Therefore, the factor of reliance on the advice of Censeo or Nidus has not been made out by the plaintiff. It would therefore be wrong in principle, and contrary to public policy, as well as lacking in social utility, for liability to be created in the absence of such demonstrated reliance: s 5B(2)(d) of the CL Act.

Whether Censeo or Nidus assumed any responsibility 67No evidence has been adduced by the plaintiff to the effect that either Censeo or Nidus had assumed any responsibility for the final assessment of the extent of the actual damage. This is also evident from the fact that after 4 January 2008, neither of these entities had anything further to do with the question of repairs to the plaintiff's property, or the timing of those repairs. Therefore, the factor of assumption of responsibility by Censeo or Nidus has not been made out by the plaintiff: s 5B(2)(c) of the CL Act.

Proximity of relationship between plaintiff, Censeo and Nidus 68The plaintiff has not introduced any evidence of the factor of a relevant relationship of proximity between Censeo, Nidus and herself: s 5B(1)(a) of the CL Act.

Whether existence of a relevant category of relationship with plaintiff or an associated person 69On behalf of Censeo and Nidus, it was submitted, correctly, that Nidus was subcontracted by Siemsen, which was in turn contracted by the plaintiff's insurer to carry out the inspection and to also prepare a scope of works report on the required repairs to the plaintiff's storm damaged house. This renders the argued relationship too remote to demand the existence of a relevant duty of care to the plaintiff: s 5B(2)(d) of the CL Act.

The nature of the activities undertaken by Censeo and Nidus 70The Censeo and Nidus entities were retained to inspect the damage to the plaintiff's premises and to prepare a scope of works report. The important feature of this engagement was that these entities were not retained to carry out the actual building works and they had no relevant say in the approval of the plaintiff's claim or the scheduling of the repair works to the plaintiff's storm damaged premises. It would therefore be excessively burdensome on those entities to require of them a relevant duty of care to take precautions against the argued risk of injury in this case: s 5B(2)(c) of the CL Act.

The nature or degree of hazard or danger liable to be caused 71There was no evidence of any relevant hazard or danger caused by either Censeo or Nidus in not immediately arranging repairs to the roof of the plaintiff's storm damaged house. The hazard in question had, to a significant degree, already been created and these entities did not have it in their power to make a relevant difference to the events. In any event, it was not within the remit of either of these entities to do so. At the time of the inspection by or on behalf of these entities, there was no discernable risk of water entry due to the storms occurring on 9 December 2007. That remained the position for a further month during which neither of these entities were able to control the assessment or repair processes. At the time of the inspection, it was evident that the SES had already been in attendance and had applied tape to seal tile cracking. To require more of Censeo and Nidus in these circumstances would have been excessively burdensome upon them: s 5B(2)(c) of the CL Act.

Knowledge of potential harm 72There is no evidence to suggest that either Censeo or Nidus had any knowledge, either actual or constructive, that any failure to act and arrange urgent repairs to the storm damaged roof or to warn the plaintiff would, to the extent of reasonable foreseeability, cause relevant harm to the plaintiff: s 5B(1)(a) of the CL Act.

Potential indeterminacy of liability 73If Nidus, or for that matter Censeo, were held to owe the plaintiff a relevant duty of care in the circumstances under consideration, this could give rise to an indeterminate liability, which would tend to contradict the notion of the existence of a duty of care. This would be contrary to the social utility of the predictability of liability arising under conventional insurance arrangements: s 5B(2)(d) of the CL Act.

Nature and consequences of any action that could be taken to avoid harm to plaintiff 74Neither Nidus nor Censeo had the power or authority to either approve the plaintiff's insurance claim, or to order priorities of Siemsen's program of works. Furthermore, there is no evidence that any positive action that might have been taken by either Censeo or Nidus, could have avoided the plaintiff suffering the harm in question: s 5B(2)(a) of the CL Act.

The extent of potential impact on the autonomy of the parties 75The prospect of imposing a relevant duty of care on either Censeo or Nidus would have an obvious impact on the autonomy of these parties. The scope of the activities of Censeo and Nidus was limited to inspecting the damage to the premises and reporting to Siemsen concerning the scope of the required works. If a duty of care was found to have existed as submitted by the plaintiff this would have the effect of imposing a layer of additional obligation upon these entities beyond the contractual obligations they had to Siemsen. This would interfere with the social utility of having predictable insurance arrangements: s 5B(2)(d) of the CL Act.

Whether there were conflicting legal duties 76There were no contractual relationships between the plaintiff and either Censeo or Nidus. The contractual framework between the Censeo and Nidus entities was limited to inspection of the plaintiff's premises to prepare a scope of works inspection report. This contractual framework is a relevant consideration in determining whether a duty of care should be imposed on either Censeo or Nidus, or both. In my view, no special circumstances have been shown to exist to warrant the imposition of such a duty of care beyond the terms of the retainer between Siemsen and Nidus: s 5B(2)(d) of the CL Act.

Consistency with the terms, scope and purpose of any statute relevant to the existence of a duty of care 77There is an apparent inconsistency and tension between the argued notion of imposing a relevant duty of care on the Censeo and Nidus entities in this instance, and the statutory provisions of sections 5H to 5I of the CL Act concerning obvious and inherent risks, and the materialisation of same. In my view, this is a strong indicator against imposing such a duty of care on these entities in these circumstances: s 5B(2)(d) of the CL Act.

Desirability of need for conformity and coherence in the structure and fabric of the common law 78Neither of the Censeo or Nidus entities were contracted to carry out the repair works that were ultimately required. The lack of control on the part of these entities in such circumstances is in my view strongly determinative against the imposition of a duty of care. The works could not have been done, urgently or otherwise, until the nature and the extent of the works were both agreed and approved as between the insured and the insurer. The respective roles of Censeo and Nidus only involved intermediate steps in this process, and as such, these were neither final steps enabling approval of the works, nor steps scheduling of the timing of the works. This strongly negates the existence of a relevant duty of care: s 5B(1)(c) and s 5B(2) of the CL Act.

Conclusions 79In these circumstances, the plaintiff has not satisfied the salient features identified in Caltex Refineries (Qld) Pty Ltd v Stavar. As a consequence, I conclude that no novel duty of care should be implied, as was argued on behalf of the plaintiff. The question of breach of duty of care on the part of either Censeo or Nidus does not therefore relevantly arise. I consider the claims made by the plaintiff against Censeo and Nidus have therefore not been made out.

Consideration of Issue 5 - Contribution between defendants 80Having regard to the preceding findings, and given that the relevance of the cross claim was dependant upon the plaintiff succeeding in her claim against Siemsen, the cross claim between defendants does not relevantly arise for consideration, and must be dismissed, with costs.

Conclusions 81I have concluded that the plaintiff's case against each of the defendants has failed to establish the liabilities claimed by the plaintiff. Consequently, the cross claim should be dismissed.

Disposition 82There must be a verdict and judgment for each of the defendants in respect of the plaintiff's claims against them. Accordingly, the cross claim does not relevantly arise, and should be dismissed.

Costs 83As the plaintiff has not made out her case against the defendants, it follows that she must bear the defendants' costs of the proceedings. I will hear the parties on the appropriate order for costs on the cross claims.

Orders 84I make the following orders: (1) Verdict for each of the defendants in the plaintiff's claim against them; (2) The plaintiff is to pay the defendants' costs on the ordinary basis unless otherwise ordered; (3) The cross claim is dismissed; (4) If necessary I will hear the parties on the appropriate order on the dismissed cross claim; (5) The exhibits may be returned; (6) Liberty to either party to apply on 7 days notice if further orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2012

(2009) 171 LGERA 165

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Judgment (34 paragraphs)

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Cases Cited (12)

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