Ingeborg Martha Warnke v Leda Commercial Properties Pty Limited and Multiplex Constructions Pty Limited [1998] ACTSC 228 (5 June 1998)

  
  
  
  

  
   Downlaod RTF

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

   TORT - contribution
between tortfeasors - to be distinguished from right to
indemnity arising under contract.

   CONTRACT - indemnity clause - principle
that party responsible for primary
liability not entitled to indemnity - both parties independently responsible
for primary liability
- terms of contract deny right to indemnity.

   Law Reform (Miscellaneous Provisions) Act 1946 , s.5

   Law Reform (Miscellaneous Provisions) Act 1955 (ACT), sub-s.11(4)

   Limro Pty Limited v. McKenna and Australian Capital Territory
Health
Authority (unreported, Full Court of the Federal Court of Australia, 26 July
1990)

   Canberra Formwork Pty Ltd v. Civil
& Civic Ltd. and Another (1982) 41
ACTR 1

  

  

   CANBERRA, 10 February 1998 (hearing), 5 June 1998 (decision)

   #DATE
05:06:1998

   Appearances

  
TABLE
 Counsel for the defendant: F.G. Parker

   Solicitors for the defendant: Macphillamy Cummins
& Gibson

  
   Counsel for the third party: G. Lunney

   Solicitors for the third party: Allen Allen & Hemsley

  

  

  

   Order:

   1. The defendant be at liberty to enter judgment against the third party
for $20,000.

   2. The third party pay
the defendant's costs of the third party
proceedings.

  

  

   MILES CJ

   1. The plaintiff sued the defendant (Leda) for injuries
sustained when she
tripped and fell in the parking area of the Tuggeranong Hyperdome Shopping
Centre on 16 March 1990. The fall was
occasioned when her foot caught on the
edge of a raised metal expansion joint cover on the surface of the parking
area. Leda was
the owner and occupier of the shopping centre, including the
parking area. The plaintiff alleged negligence on the part of Leda and
relied
on the following particulars of negligence:

   "Particulars

   (a) Failing to provide a safe surface for use by pedestrian
users of the
parking area.

   (b) Failing to use reasonable care to prevent injury to users from unusual
danger, namely a slightly
raised expansion joint.

   (c) Failing to provide a railing along or beside the expansion joint, a
joint which was either not raised
or raised to step height, and/or to give any
warning by way of a contrasting colour on the joint or otherwise."

   2. By consent,
the plaintiff obtained judgment against Leda on 12 December
1994 in the sum of $30,000 (expressed to be "inclusive of costs").


  3. The third party claim alleges that Leda is entitled to contribution or
indemnity from Multiplex as a joint tortfeasor under
s.5 of the Law Reform
(Miscellaneous Provisions) Act 1946. (The Act relied on is an Act of New South
Wales. Perhaps the pleader intended
to refer to the Law Reform (Miscellaneous
Provisions) Act 1955 of the Australian Capital Territory, s.11 of which is in
identical
terms.)

   4. The third party claim further and in the alternative alleges that,
pursuant to agreement between Leda and the third
party (Multiplex), Multiplex
carried out certain design and construction work at the shopping centre and
that it was a term of the
agreement that Multiplex would indemnify Leda
against any liability in respect of personal injury to any person arising out
of or
in the course of the execution of the work "unless due to any act or
neglect of the defendant (Leda) or of any person other than
the building (sic)
for whom the proprietor (Leda) is responsible".

   5. A separate and further claim was made, in the alternative,
that
Multiplex had, in breach of the agreement, failed to insure Leda against
liability of the nature of that alleged by the plaintiff,
but that claim was
not pursued at the hearing of the third party claim.

   6. Leda claims, in short, that Multiplex is liable for
indemnity or
contribution as a joint tortfeasor, alternatively, for breach of the terms of
the contract of indemnity as alleged.

   7. The negligence alleged by Leda against Multiplex, as a tortfeasor,
repeats the particulars relied upon in the plaintiff's
statement of claim,
referred to above, and adds the following:

   "(b) failure to properly design and construct the expansion joint;

   (c)failing to properly supervise the building works."

   8. The plaintiff gave evidence on behalf of Leda. On the evidence she
gave,
and photographs received into evidence, it is clear that shoppers walking to
and from parked vehicles had to negotiate metal
joints set into the surface of
the parking area. There were a number of these joints. Their purpose was to
allow for expansion and
contraction of sections of the surface according to
weather conditions.

   9. The expansion joint in question was constructed parallel
to vehicles
parked in bays on each side of an area left free for the passage of vehicles.
A photograph (not taken at or about the
time of the plaintiff's injury) shows
a car parked with both its nearside wheels on the expansion joint cover.
Vehicles proceeding
between the two parking bays were driven over the
expansion joint at right angles. Of necessity the four wheels of such vehicles
would strike the expansion joint cover when they passed over it. It is likely
that the wheels of some vehicles were parked with one
or two wheels on the
expansion joint cover, as shown in the photograph.

   10. The expansion joint cover was of steel plate, about
570 mm in width.
Its outside edges projected about 24 mm above the concrete surface at the time
of the photograph. In the middle
section of its width, about 370 mm, it was
about 34 mm above the surface. It sat above the gap between the two sections
of the surface
as a sort of saddle.

   11. The saddle was held down on either side of the middle section by an
outer section of about 100 mm on
each side. Each of the outer sections acted
like a flange. The flange was fixed by bolts set into the concrete surface, so
that the
flange should have sat more or less flush with the surface at the
time of the installation of the expansion joint cover.

   12.
An architect, Mr. P. McMaster, inspected the site on 18 May 1992. He
observed that the flanges had become bent upwards at their outer
edges to a
height of no more than 24 mm above the surface of the roadway. I find that the
raising of the edges of the flanges was
caused by the daily impact of the
wheels of the vehicles. I further find that it was the raised edge of the
flange that caught the
plaintiff's foot and caused her to fall.

   13. Mr. McMaster's unchallenged observations relating to construction and
design of
the expansion joint cover were as follows:

   "The cover is held down by concrete bolts, set in the separate concrete
slabs on each
side of the joint. Because there is relative movement between
the two slabs, this movement must be taken up by the bolt fixing detail.
Because of this, the cover is held down by the bolts by means of a slotted
hole detail. The bolts cannot be tightened because, if
they were, possible
fractures or stresses in the metal cover would occur when the slabs move
(normal expansion joint details allow
for the movement between the slabs to be
taken up by a compressible or flexible joint). Because the nuts on the bolts
cannot be tightened,
there is a 20 mm minimum gap between the concrete slab
and the underside of the edge of the steel plate expansion joint cover. This
is hazardous and unacceptable."

   14. Mr. McMaster's unchallenged opinion as to a safe and practicable
alternative was as follows:

   "As immediate and local evidence that the expansion joint detail is not
standard, is the fact that an acceptable alternative
design has been used in
the goods loading area of the adjacent Grace Brothers store, part of the total
complex. This expansion joint
consists of brass angles set into the edge of
adjoining slabs, and a compressible rubber filler joint inserted between both
angles.
A maximum vertical obstruction to pedestrian traffic is approximately
6 mm, and sits flush on top of the concrete slab. This detail
is standard and
acceptable, with the exception that in this case, the bolts which secure the
brass angle have not been recessed in
the angle."

   15. As Mr. McMaster observed, the aim of an expansion joint is to provide a
single plane surface connecting the adjacent
surfaces without protrusion.
However, in my view, it is possible that one purpose of the expansion joint
cover was to slow down vehicular
traffic, in which case some raising above the
surface was entirely appropriate. However, it was not appropriate to allow the
edges
of the flange to become raised in the way that developed in this case,
almost inevitably causing one of the shoppers to catch her
foot and fall.
Multiplex was clearly in breach of its duty of care to take reasonable care in
and about the design and construction
of the expansion joint so that it did
not constitute an unnecessary risk to shoppers who were likely to be walking
in the vicinity.

   16. In consenting to judgment, Leda has conceded its failure to properly
maintain the premises, including the surface of the
carpark, in order to make
them reasonably safe for persons like the plaintiff. Be that as it may, in the
absence of evidence that
Leda kept the carpark under reasonable observation
and supervision, which would have alerted it to the likelihood that the
passage
of vehicles would make the expansion joint cover unsafe for
pedestrians, Leda must bear responsibility for a substantial part of
the
plaintiff's damages.

   17. On balance, I am of the view, that a "commonsense" approach to
causation and apportionment requires
that it is just and equitable that the
greater portion of the plaintiff's damages should be attributable to faulty
design on the
part of Multiplex. Accordingly, as between joint tortfeasors,
Leda should contribute one third and Multiplex two thirds of the plaintiff's
damages.

   18. The contract for design and construction of the Tuggeranong retail
shopping centre is dated 25 July 1986. Sub-clause 7.02
thereof gives Leda
the right to full indemnity unless the injury, or possibly the liability of
Leda arising from the injury, is "due
to any act or neglect of Bellamy or any
person other than the Joint Venture for whom Bellamy is responsible".

   19. The contract
defines "Joint Venture" as Multiplex and a company called
Marubeni Developments Pty Limited (Marubeni) in their capacity as parties
to a
Joint Venture Agreement of even date between Multiplex and Marubeni. "Bellamy"
is Bellamy Pty Limited. Nothing was put by counsel
for either Multiplex or
Leda to suggest other than for the purposes of the present proceedings the
reference in sub-cl.7.02 to Bellamy
and the Joint Venture should not be taken
to mean Leda and Multiplex respectively.

   20. The right to indemnity given by sub-cl.7.02
is not a right to
contribution. The claim to indemnity either succeeds or fails in toto. The
onus is on Multiplex to show that the
plaintiff's injury was caused by the act
or neglect of Leda or any other person, other than Multiplex, for whom Leda is
responsible.
The notion of causation is, as I have said, a "commonsense" one.
In my view, the plaintiff's injury was caused both by the failure
of Multiplex
and Leda, that is to say, the failure of Multiplex to properly design and
construct the expansion joint and the failure
of Leda to properly maintain and
supervise the carpark. Multiplex has discharged the onus and Leda is not
entitled to indemnity under
the contract.

   21. In deference to the submissions of Mr. Parker, counsel for Leda, I deal
with another issue raised. It is trite
to say that contract cases depend on
the terms of the contracts. However, some assistance may be gained from Limro
Pty Limited v.
McKenna and Australian Capital Territory Health Authority
(unreported, Full Court of the Federal Court of Australia, 26 July 1990).
In
that case the contract for cleaning the Woden Valley Hospital contained a
provision that the cleaning contractor "shall indemnify
[the hospital
authority] against all ..... claims .... in respect of loss .... caused or
alleged to have been caused by the contractor."
An injured hospital employee
sued the contractor and the hospital authority and recovered damages against
both. The hospital authority
claimed indemnity from the contractor under the
contract. The contractor claimed contribution or indemnity from the hospital
authority
as a joint tortfeasor. The provisions of sub-s.11(4) of the Law
Reform (Miscellaneous Provisions) Act 1955 (ACT) were relevant. The
judgment
of the Full Court states:

   "The final limb to sub-s.11(4) is fatal to Limro's claim against ACTHA once
it is established
that ACTHA is entitled to indemnity against Limro. However,
it was submitted on behalf of Limro that the indemnity clause in the
contract
did not apply where ACTHA sought to be indemnified against the consequences of
its own negligence. There is some authority
for the proposition that an
indemnity clause like this will be read down so as not to permit a tort-feasor
to pass on the consequences
of its own breach of duty to the party seeking
indemnity. Glanville Williams in Joint Torts and Contributory Negligence (1 st
ed.,
2 nd impression) 1953 at p.145 says:

   `....the court will be slow to construe an indemnity clause as applying to
the consequences
or an act of negligent misfeasance by the party claiming
indemnity.'

   The author observes:

   `Once it is accepted that the situation
is governed in a particular case by
the express contract between the parties, the cases turn on the construction
of the contract
and not on general principles of law.'

   In Canberra Formwork Pty. Ltd. v. Civil & Civic Ltd. and Another (1982)
41 A.C.T.R
1, Blackburn C.J. construed an indemnity clause to the effect that
it indemnified the employer against liability for breach of the
non-delegable
duty owed to an employee occasioned by the negligence of a contractor but not
against liability arising from the fault
of the employer itself. Similarly, in
City of Kitchener v. Robe & Clothing Co. Ltd. [1925] 1 D.L.R. 1165, the
Supreme Court of
Canada held that where the contractor had committed an act of
misfeasance and where the liability of the employer rested merely on
vicarious
liability from non-feasance by failing to remove a known source of danger, the
employer was entitled to rely on the indemnity
clause.

   It is necessary to consider then the nature of the successful claim against
the two defendants. The plaintiff succeeds
against Limro because of the
negligence of Limro's employee, and the plaintiff succeeds against ACTHA as
her employer for failure
to ensure that reasonable care was taken by Limro.
Whether the liability of ACTHA is vicarious or based on a non-delegable duty
does
not matter for the purposes of the plaintiff's claim, nor on the facts
does it matter for the purposes of the indemnity clause. Fault
on the part of
ACTHA has not been established apart from its failure to ensure that the
plaintiff was not exposed to the risk of
injury from the operations of the
cleaning contractor. His Honour found that the negligent acts of the
contractor constituted the
elements of ACTHA's breach of its duty of care.
Therefore, ACTHA is entitled to rely on the indemnity provided by the
contract, and
this in turn disentitles the contractor to contribution under
s.11 of the Law Reform (Miscellaneous Provisions) Act.

   22. The
facts are different in the present case from those in Limro and in
the Canadian case in that Leda's liability to the plaintiff is
not a vicarious
liability for the conduct of Multiplex but arises out of its own independent
failure to maintain the surface of the
carpark. The facts are closer to those
in Canberra Formwork Pty Ltd v. Civil & Civic Ltd. and Another (1982) 41
ACTR 1, where
Blackburn CJ held that the indemnity clause did not apply where
liability arose from the fault of the party seeking indemnity.


  23. As a general principle, where the only fault giving rise to the primary
liability is that of the party seeking indemnity then
that party cannot rely
upon an indemnity clause such as that in the present case. However, where the
liability arises by independent
fault both on the part of the party agreeing
to indemnify the other and on the part of the other party seeking indemnity,
then the
terms of the agreement must be given effect. In the present case
those terms provide that irrespective of the degree of fault on
the part of
Leda, Multiplex is not liable to indemnify Leda if the primary liability is
due to the "act or neglect" of Leda. As I
have found on the facts the
plaintiff's injury was caused by independent acts or omissions of negligence
by both Leda and Multiplex,
Leda thereby loses the right to indemnity under
the contract.

   24. The plaintiff having recovered judgment against Leda for $30,000,
Leda
is, in its third party claim against Multiplex as a joint tortfeasor, entitled
to judgment for $20,000. Leda's third party claim
against Multiplex for
indemnity fails. Multiplex is to pay Leda's costs of the third party
proceedings.