Moore & Anor v Scolaro's Concrete Constructions Pty Ltd

Moore & Anor v Scolaro's Concrete Constructions Pty Ltd - [2004] VSCA 152 - VSCA 2004 case summary — Zoe

[6]

"5. (a) On the contribution proceedings between the first, second, third, fourth, sixth, seventh, eight, ninth and tenth defendants, the apportionment pursuant to s.24 Wrongs Act 1958 is as follows: (i) the first defendant is liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (ii) the second defendant and the sixth defendant are jointly and severally liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (iii) the third defendant is liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (iv) the fourth defendant is liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (v) the seventh defendant and the tenth defendant are jointly and severally liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (vi) the eighth defendant is liable to contribute 25% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 25% to the plaintiff's taxed costs as ordered; (vii) the ninth defendant is liable to contribute 25% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 25% to the plaintiff's taxed costs as ordered. If any of the first, second, third, fourth, sixth, seventh, eighth, ninth and tenth defendants pays more than the percentage it has been ordered to contribute, such defendant may recover from any other defendant to the extent of such other defendant's liability to contribute. (b) As to the 10% contribution of the second defendant and the sixth defendant referred to in paragraph 5(a)(ii), the second defendant is liable to contribute 41.7% and the sixth defendant is liable to contribute 58.3%. If either of the second or sixth defendant pays more than the percentage it has been ordered to contribute, under this sub-paragraph, such defendant may recover from the other defendant to the extent of such other defendant's liability to contribute. (c) As to the 10% contribution of the seventh and tenth defendants referred to in paragraph 5(a)(v), the seventh defendant and the tenth defendant are each liable to contribute 50%. If either of the seventh or tenth defendant pays more than the percentage it has been ordered to contribute, under this sub-paragraph, such defendant may recover from the other defendant to the extent of such other defendant's liability to contribute. 6. That the first, second and fourth defendants are each severally liable to indemnify the seventh defendant to the extent of 20% each of the seventh defendant's 5% contribution."

[37]

The judgment indicates (1) through the provision of earlier plans omitting relevant details it was aware of the fact that balustrade heights needed to be checked when completed plans as to the project arrived[22]; (2) Thomas took no step to ensure that its agent Young was careful in his later examination of the plan[23]; (3) the failure of Young to detect and have corrected the defects in plan 18B was negligent conduct for which Bigridge was vicariously liable[24]; (4) the statutory immunity was not available to Young and Bigridge because Young did not act in good faith in relying on the certificate of final inspection[25]; (5) the primary responsibility for inspection remained with the surveyor. The statutory immunity applied only to the individual who is discharging functions under the Act[26]; (6) the conduct of Thomas was relevant to the question of good faith because he engaged Smith and his attitude was relevant to Young's attitude to Smith[27]; (7) the certificate presented by Smith did not comply with the regulations and the immunity provisions did not apply[28]; (8) a feature of Thomas' evidence was that he was acutely sensitive and appreciative as to his relationship with Hudson Conway[29]; (9) it was a deliberate decision on the part of Young not to oversee what was happening (with Smith) lest that interfere with or complicate the total immunity given by the Act[30]; (10) it is probable that Young did not bother to check the documentation Smith provided with the Form 14 and doubtful that he gave more than glancing attention to the Form 14 itself[31], Young adopted a "hands off" approach towards his own and Bigridge's statutory and contractual obligations[32], he displayed "blind disinterest"[33]; (11) Bigridge had a contractual obligation to HCML to inspect[34]; (12) Bigridge owed a duty to the plaintiff either to inspect the balustrade or to ensure it was properly inspected[35]. The surveyor is permitted to delegate only the act of inspection not the duty to inspect[36]. This was an instance of a non-delegable duty of care. No steps were taken by Young to ensure Smith was exercising the appropriate care in his inspections[37]; (13) duty imposed on young was equally imposed on Bigridge[38]. Bigridge was in breach of its duty with respect to onsite activities. It was obliged to check that reasonable care and skill was being employed by Smith. No step was taken by Young to discharge the non-delegable duty to check the work being done by Smith[39]; (14) Young should have picked up the defects on the plan and should not have granted an occupancy permit[40]; (15) Young had a continuing role and duty with respect to site inspections which was not discharged merely by appointing Smith. He failed to discharge that duty[41]; (16) Young did not bring the requisite skill and attention to the job of examining the plans and was negligent as a surveyor[42].

[40]

(1) HCML through James had actual knowledge of the deficiency of the height of the balustrade and chose not to correct it[57]; (2) Davidson Hughes Estate Pty. Ltd. ("DHE") through HCML were in a position of control by virtue of their contract with Scolaro's so as to ensure any deficiency was remedied[58]; DHE as owner/occupier of the building when the dangerous defect arose failed through its agent to exercise reasonable care to remove the defect and make the premises safe[59]; (4) having regard to the role played by James for HCML during the project, his decision not to correct the balustrade height was within the scope of his authority[60]; (5) DHE is liable for the inaction of HCML through James in addressing the danger posed by the low balustrade[61]; (6) DHE breached a statutory duty of care it owed under clause D2.16[62]; (7) HCML must have known that Scolaro and his sub-contractors were performing work which was substandard in many respects. The fact that external balustrades were built below the code height might have alerted HCML to the need to have internal balustrades checked. HCML chose not to require an architect's inspection. HCML had both expertise and considerable influence on site[63]. DHE was not an average owner, HCML had ample economic and practical influence on site to determine the manner of performance by the builder and subcontractors[64]; (8) HCML had been put on notice of the likely problems with the balustrade not only by virtue generally of the poor quality of the work of Scolaro and its subcontractors but more specifically by virtue of the knowledge that external balustrades were built below the height required by the plan[65]; (9) the liability of DHE arises by virtue of the breach of its statutory duty and also by virtue of its actual knowledge (through James and HCML) of the danger posed by the balustrade and the inaction of HCML to correct the defect. The liability of HCML arises independent of its role as agent by virtue of its own breach of duty of care arising by virtue of James' knowledge and inaction as to the balustrade[66].

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties