Capital Weed Control Pty Ltd v Australian Capital Territory [2014] ACTCA (10 April 2014)

Introduction

This case considered the circumstances in which representations made by one party to another could give rise to a duty of care.

An employee of Capital Weed Control Pty Limited (“CWC”) sustained serious injury when a poplar tree fell on him in the course of his employment.

CWC settled their employee’s claim and has pursued a contribution claim against the Australian Capital Territory. The contribution claim proceeded on the basis that a Miss Jenny Connolly, a Pest and Weeds Officer of the Parks Conservation and Lands Department had previously inspected the area where the claimant was working. She was asked to perform such an inspection by CWC because several poplar trees in the vicinity of an area they were spraying had been vandalised with a tomahawk or similar item. Miss Connolly inspected the damaged trees and declared the area was safe for work to continue.

At the first instance it was held that CWC had not established that a duty of care arose between Miss Connolly and the CWC on the basis “It was not made clear to her by [CWC] that it was relying on her decision as to whether it was safe for its employees to resume work in the area of the plaintiff‘s injury”.

CWC appealed to Australian Capital Territory Court of Appeal.

The Findings

Firstly, the Court noted a significant gap in the evidence stating at paragraph 13:-

“It was a critical aspect of CWC‘s claim that Miss Connolly had, in providing an opinion that it was safe to continue work despite the vandalised trees, represented a capacity to do so based on her expertise and experience. But in the Supreme Court, CWC failed to adduce evidence to show that a qualified tree inspector, or arborist, having inspected the vandalised trees would have given different advice to that provided by Miss Connolly. It appears to have been merely assumed by CWC that because a vandalised tree fell, it so fell because it was vandalised. This conclusion does not necessarily follow: the event was not of the nature of a res ipsa”

As to the breach the court commented at paragraph 14:-

“Even if the tree fell because it was vandalised and Ms Connolly‘s advice was incorrect, CWC would still need to show that Ms Connolly had not exercised reasonable care in the circumstances. As was stated by Barwick CJ, in MLC v Evatt at 573, a speaker of a representation “is not in breach merely because his [or her] communicated information is incorrect or his [or her] proffered advice erroneous“. The evidence in the Supreme Court was non-existent in this regard”.

The appeal was therefore dismissed. The court however did take the opportunity to consider the circumstances in which a maker of representation will owe a duty and when it might be breached.

The court said at paragraph 18:-

There are three essential requirements for a duty of care to arise in circumstances where one party has purported to rely on the representations of another (MLC v Evatt (1968) 122 CLR 556):

■    First:

“… the circumstances must be such as to have caused the speaker or be calculated to cause a reasonable person in the position of the speaker to realise that he is being trusted by the recipient of the information or advice to give information which the recipient believes the speaker to possess or to which the recipient believes the speaker to have access or to give advice, about a matter upon or in respect of which the recipient believes the speaker to possess a capacity or opportunity for judgment, in either case the subject matter of the information or advice being of a serious or business nature.”

■    Second:

“… the speaker must realise or the circumstances must be such that he ought to have realised that the recipient intends to act upon the information or advice in respect of his property or himself in connection with some matter of business or serious consequence.”

■    Third:

“… the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker.”

In the circumstances of the current case the court noted the following first instance findings of fact:-

“It was not made clear to her … that the defendant was relying on her decision as to whether it was safe for its employees to resume work in the area of the plaintiff‘s injury. She was a relatively junior ACT Public Servant. Her responsibility was to manage the contract with the defendant and to make sure that the defendant carried out the work it had contracted to do. I am not satisfied that this placed Miss Connolly in a position where she had a duty of care to take precautions to avoid the risk of injury to the plaintiff which eventuated”.

Even though the ACT Court of Appeal noted that it seemed clear that CWC did in fact rely on Miss Connolly’s advice, this alone did not mean the first criterion was fulfilled stating at paragraph at 22:-

“It requires proof that the person giving the advice must realise that the recipient is relying upon the first person for that advice. The Master found that Miss Connolly was never made aware of this fact. His Honour came to this conclusion taking into account the evidence that Miss Connolly was a “relatively junior ACT Public Servant“.

The court again noted the comment of Barwick in MLC v Evatt 571 where it was said:-

“I should think that in general the statement will arise out of an unequal position of the parties which the respondent reasonably believes to exist. The recipient will believe that the speaker has superior information either in hand or at hand with respect to the subject matter or the speaker has greater capacity or opportunity for judgment from the recipient”.

The court felt that the evidence did not support the proposition that Miss Connolly was made aware that she had been entrusted by CWC for information. It said that the evidence did not support the conclusion that CWC reasonably believed Miss Connolly possessed the expertise or indeed superior information to provide the advice that the vandalised tree would not fall. It was said that the first requirement of MLC in Evatt had not been met and the duty of care simply did not arise unless and until that threshold was met.

Implications

This case is perhaps another example of a court taking a dim view of employers seeking to divest themselves of the responsibility for providing a safe place of work by relying on a third party in this instance a government agency.

It also highlights that reliance on the doctrine of res ipsa loquitur is a pitfall for any person bearing the onus of proof particularly in the context of what an “expert” would have done in a particular circumstance. In most cases, there must be actual evidence to show what a “non negligent” expert would have done and whether or not that would have made a difference.

Here the ACT employee relied upon was a junior ACT public servant (despite the fact there was evidence that she had a back ground in horticulture) and as such the court felt that any reliance upon her by the employer was misplaced.