Bellevarde Constructions Pty Ltd v L’Officina by Vincenzo Australia Pty Limited

1. [1]

   WHITE JA: I agree with Brereton JA.

2. [2]

   BRERETON JA: On 17 November 2018, the first respondent Alan Monahan (who, as will become apparent, has filed a submitting appearance in this appeal), then aged 30, was working as a carpenter on a residential building site in Surry Hills. He and his co-worker Mr Morgan were employed by Taylor Carpentry Holdings Pty Ltd, which had been subcontracted to perform carpentry work at the site, the head contractor being the appellant Bellevarde Constructions Pty Ltd (“Bellevarde”). The second respondent and cross-appellant L’Officina by Vincenzo Australia Pty Limited (“L’Officina”) was responsible for the supply and installation of, inter alia, a heavy metal clad door weighing approximately 200kg, designated “Door 115” in the architectural drawings. The door was delivered to the site on Friday 16 November 2018 but could not be installed then, apparently because the footings were inadequate to support it. On Saturday 17 November 2018, Mr Monahan responded to a call from another worker at the site, Mr Sebastian Rolfe who was employed by Bellevarde, to assist in moving and lifting the door, in order to load it onto the back of a tabletop truck parked outside the premises. In the course of doing so, Mr Monahan suffered a debilitating musculoligamentous strain injury to his lumbar spine, as a result of which he has since been unable to work, forfeited his visa, and returned to his home in Ireland.

3. [3]

   Mr Monahan sued Bellevarde and L’Officina in the District Court. Levy DCJ found in his favour against both defendants and awarded him damages of $750,000 inclusive of interest. [1] The judgment was subsequently varied by consent to $750,000 against both defendants jointly and severally. On cross-claims for contribution between the defendants, his Honour apportioned liability 80% to Bellevarde and 20% to L’Officina, and gave judgment accordingly. Bellevarde appeals against the apportionment, contending that it should have been held liable for only a minority share of the judgment. L’Officina cross-appeals, contending that it should not have been found liable at all.

Background

1. [4]

   When L’Officina delivered the door to the site at Surry Hills on Friday 16 November 2018, its subcontracted installer Mr Acuri was in attendance, but the door could not be installed, because the concrete base required for pivoting the door was structurally inadequate. [2] It was left leaning against a nearby brick wall. The following day, Saturday 17 November 2018, a decision was made to move the door off-site. His Honour found that someone on behalf of LOfficina – probably Mr Acuri – would have advised a Bellevarde employee that the door could not be installed at that time as had been planned, and someone made a decision to move the door. [3] His Honour reasoned that the requirement to move the door arose from the fact that it could not be installed, that remedial work was required on the concrete slab before it could be installed, and that storage space on site was limited. His Honour concluded that the decision was for the benefit of both Bellevarde and L’Officina, in the case of the latter particularly to ensure that the door was kept safe from damage while it remained on site and uninstalled. [4]

2. [5]

   The decision having been made that the door had to be moved from the position where it had been left, and the only option being to do so by manual labour, Bellevarde’s employees – in particular, Mr Rolfe and Mr Chui – participated in the process. Mr Rolfe called upon Mr Monahan and his colleague Mr Morgan to assist, [5] and oversaw the process. [6] First the door was moved manually from its resting place to the footpath outside; then it was lifted and stowed on the back of the truck. This was a difficult process. It was in the course of that second process – lifting the door onto the truck’s load tray – that Mr Monahan was injured.

3. [6]

   Preferring Mr Monahan’s more detailed recollection to the more limited recollection of Mr Rolfe, [7] the primary judge found that Mr Rolfe was giving instructions and coordinating the task of moving the door, in consultation with servants or agents of L’Officina who were also on site. [8] In a finding which is not challenged on appeal, his Honour found that the truck belonged to L’Officina. [9] His Honour reasoned that L’Officina’s driver Mr Espimaris was on site, and participated in loading the door; [10] that Mr Acuri and one or more of his employees Piero and Mateo were present; [11] and that Mr Malucci of L’Officina was there as well as the truck driver. [12]

4. [7]

   Having thus found that Mr Monahan and his colleague Mr Morgan, Mr Rolfe and Mr Chui of Bellevarde, L’Officina’s truck driver Mr Espimaris, and at least one other person (either Mr Malucci, Mr Acuri and/or Mr Acuri’s employee) participated in lifting and moving the door, his Honour concluded: [13]

5. [8]

   The primary judge then held that all those who participated in the lifting and loading of the door owed a duty of care to the other participants, but more particularly so in the case of those who were directing the process, noting the dictum of McHugh J in Allianz Australia Insurance Limited v GSF Australia Pty Limited that “Where a person directs another person to take a step that places a person in proximity to a passive condition of danger, it is often the case that it is the direction rather than the condition that causes any subsequent harm”, a statement which his Honour said “aptly applies to Bellevarde and to L’Officina in this case”. [14] His Honour said that such duty of care could only be discharged by ensuring that the task was adequately planned and supervised so that those participating were appropriately placed in strategic positions with postures safely to bear the weight of the door, and that this could have been achieved only after adequate evaluation and consideration and instruction, [15] and concluded: [16]

6. [9]

   As to breach of duty, his Honour concluded: [17]

7. [10]

   Turning to apportionment of liability, the primary judge correctly observed that it required comparing the relative blameworthiness or culpability of each defendant, and the causative potency of each’s negligence, according to what is just and equitable in the circumstances. [18] His Honour reasoned:

   1. (1)

      Bellevarde’s actions in not enabling the door to be installed when planned and in deciding to shift it and load it onto the truck precipitated the events, in circumstances where Bellevarde was in control of the site; whereas L’Officina’s subsequent actions were an incidental consequential occurrence;

   2. (2)

      Bellevarde should bear greater responsibility because its employee Mr Rolfe was overseeing and directing the process;

   3. (3)

      as to respective causative potency, Bellevarde as the instigator should bear greater responsibility; and

   4. (4)

      Mr Rolfe decided without due planning and consideration to have the door lifted and loaded onto the truck; whereas in contrast L’Officina’s role was more minor, its servants or agents having responded to Bellevarde’s actions in dynamic circumstances where Bellevarde had already initiated the process, and they were not in a position to call a halt to the next (and critical) manoeuvre (that is, lifting onto the truck) as Mr Rolfe was already on the back of the truck. [19]

8. [11]

   The question of contribution arises only if both defendants are liable. In this appeal, Bellevarde does not dispute that it is liable, although it contends that it should bear a much lesser share than 80%. L’Officina, on the other hand, contends that it ought not have been held liable at all. In those circumstances, it is logical first to deal with the cross-appeal, although doing so will necessarily involve addressing many of the arguments on which Bellevarde relies for its contention that L’Officina’s responsibility was greater than its own.

Liability of L’Officina

1. [12]

   L’Officina submits that no one for whom it could be liable was present, aware of, or involved in the moving of the door. It challenges the finding that Mr Malucci and Mr Espimaris were present, and says that it is not vicariously liable for the acts of Mr Acuri and his employees, who were not its employees but subcontractors.

2. [13]

   Those submissions require scrutiny of the relevant evidence, which was as follows.

3. [14]

   Mr Monahan gave the following evidence: [20]

4. [15]

   That evidence amounts to no more than speculation that it was somebody from “the door company” – a description which in itself could as easily relate to the installers (Mr Acuri and his employees), as to L’Officina – based on the fact that he did not recognise them and they spoke Italian.

5. [16]

   Mr Rolfe said that he was not completely sure what was the reason for moving the door, but that it had to be altered by the manufacturer. [21] He did not know what had to be altered, but only that it needed to be moved. [22] He could not recall who asked him to move it. [23] He was asked by his Honour for whose benefit the moving was occurring, that is to say who would have benefitted, and answered “both parties, I suppose”. [24] Asked to explain the respective benefits he said: [25]

6. [17]

   When asked whether he enlisted someone else to help, he said: [26]

7. [18]

   He remembered those involved as including Mr Monahan, Adam Chiu (from Bellevarde), Mr Morgan (Mr Monahan’s co-worker) and two others; he could not recall whether they spoke English. [27] Nor could he remember who devised the method of lifting and coordinated it. [28]

8. [19]

   Mr Rolfe gave the only evidence of what the driver is said to have done: [29]

9. [20]

   And then: [30]

10. [21]

    When asked why it fell upon him “to go and line up people to do this lift” in circumstances where he was not a leading hand but a carpenter, he answered: [31]

11. [22]

    When asked whether there was any reason why the door had to be moved from the perspective of his completing his work he said: [32]

12. [23]

    Elements of Mr Rolfe’s evidence have the appearance of reconstruction as distinct from recollection. There is no objective support for the proposition that the door needed to be modified; it was the footings that required modification. That he could not recall any reason for the door to be moved, from his perspective as a carpenter working elsewhere on the site, does not mean that there was no reason for his superiors in Bellevarde to want it moved. His denial that he enlisted anyone else to assist was contrary to the evidence of Mr Monahan, which was preferred by his Honour. Nonetheless, he gave some albeit slight evidence that the truck driver was involved in the lifting of the door.

13. [24]

    Mr Luciano Botte, the Operations Manager for L’Officina, said that to his knowledge, following the delivery of the door to the site, it never returned to either of L’Officina’s workshops, and that as Operations Manager he would have expected to have been informed had that occurred. [33] As the primary judge observed, that does not exclude the possibility that the door could have been removed from the site and stored elsewhere, including on the truck.

14. [25]

    Mr Vincenzo Botte was the designer and creator of the special patina finishes for which L’Officina is known, and had crafted the specialised finish on the door – which he described as steel framed with internal plywood components and encased in zinc sheeting that was polished and then patinated in an antique blackened finish. He gave the following evidence concerning the driver Dimitri Espimaris: [34]

15. [26]

    That last answer was neither elaborated nor challenged. Nonetheless, I would not take the bald statement that Mr Espimaris worked Monday to Friday and never on a Saturday to exclude the possibility that he might for a special reason or emergency have driven the truck on a Saturday if asked to do so. Otherwise, his evidence does tend to show that Mr Espimaris was not a speaker of Italian.

16. [27]

    Mr Botte also gave evidence that Mr Malucci was responsible for overseeing the installation, and that he had returned to Italy a couple of years previously, after working for L’Officina for five or six months. [35] He said that if there was a requirement for the door to be removed from the site, it would be Mr Malucci who would have made that decision: [36]

17. [28]

    Given the multiple components of the question and the manner in which it was framed, I would not regard the answer “that’s correct” as necessarily including assent to the proposition that Mr Malucci would have been at the site when he made the decision.

18. [29]

    In cross-examination, Mr Botte gave this evidence: [37]

19. [30]

    Like Mr Luciano Botte, Mr Vincenzo Botte gave evidence that, to his knowledge, the door was never returned to L’Officina’s premises. [38]

20. [31]

    It is clear enough that Mr Acuri was on site, as is evidenced by an email sent by Luciano Botte of L’Officina to Phyllis Fisher on 7 October 2020, as follows (emphasis added):

21. [32]

    His Honour found that it was most likely Mr Acuri who “on behalf of L’Officina” advised a Bellevarde employee that the door could not be installed as planned. [39] His Honour reasoned that it was unlikely that Mr Acuri would have attended alone, as the sole installer on behalf of L’Officina: [40]

22. [33]

    As to Mr Malucci, his Honour inferred that he was present from an email sent by him to Mr Julian Petrie (and Mr Ben Lea) of Bellevarde: [41]

23. [34]

    The relevant email, which was sent on 20 November 2018 at 10:54 am, was as follows:

24. [35]

    Even if the reference to “we” were interpreted in the manner in which his Honour did, as distinct from the more natural reading that it does no more than refer to the firm on whose behalf he was writing, that email recounts events of 16 November, and then of 20 November, and is entirely silent as to the removal of the door on 17 November. It provides no evidence that Mr Malucci was in any way involved in the decision to remove the door on 17 November, let alone on site when it occurred. Nor does it provide any evidence that L’Officina was involved in the removal of the door on 17 November. On the other hand, the recording of the request not to deliver any other doors provides some support for the proposition that it was Bellevarde rather than L’Officina who did not want doors on site until they could be installed.

25. [36]

    The trial judge, applying Jones v Dunkel, [42] drew inferences from L’Officina’s failure to call Mr Malucci and Mr Espimaris that their evidence would not have assisted L’Officina. Before us L’Officina submitted that the drawing of such inferences was unwarranted. As to Mr Malucci, it was submitted that there was no on-going relationship between him and L’Officina, as he had worked for the firm only for a few months and had returned to Italy a couple of years before the hearing. However, he was a former employee of L’Officina; L’Officina was far better positioned than Bellevarde to ascertain where he might be found; and, as is nowadays commonplace, he could have given evidence by video link. In my view, an inference that his evidence would not have assisted L’Officina was open. So far as the driver was concerned, he was or had been an employee of L’Officina, and there was no explanation at all for his absence. In circumstances where it is no longer in dispute that it was L’Officina’s truck onto which the door was loaded, an inference that his evidence would not have assisted L’Officina was well available.

26. [37]

    Nonetheless, a Jones v Dunkel inference is not a substitute for evidence; if there is no evidence of a matter, the inference cannot fill the void. In my view, not only was there no evidence that Mr Malucci was present on 17 November, but the email of 20 November, which does not refer to the day at all, tends to the contrary; if he had been there, one would have expected some reference to the events of that day in such an email of complaint.

27. [38]

    On the other hand, it is no longer in dispute that it was L’Officina’s truck onto which the door was loaded on 17 November. The probable explanation for the presence of the truck is that someone in authority at L’Officina, and most likely Mr Malucci (according to the evidence referred to above, that it was he who would make such a decision at the time), had arranged or authorised for it to be present. L’Officina submitted that the truck might have been left in situ at the site after delivering the door on 16 November, and remained there with the door reloaded on it after 17 November for some days. However, this seems far-fetched: why it would have been left there is not at all apparent; there is no evidence of anyone in L’Officina having authorised such a course or having any reason to do so; and the confines of the site and the street were such that it appears practically impossible. On the probabilities, it was present on 17 November with the knowledge and approval of L’Officina for the purpose of receiving the door. If it was present, then so was a driver, although it does not necessarily follow that the driver was involved in the lift.

28. [39]

    If, as I would be prepared to infer, Mr Espimaris (or possibly some other employee of L’Officina on this occasion) drove the truck to the site and was present, the only evidence that he did anything beyond driving the truck was the faint evidence of Mr Rolfe referred to above. [43] The evidence that the two unidentified men involved in the lifting enterprise spoke Italian to each other tells against one of them being Mr Espimaris, who did not speak Italian. On the probabilities, those speaking Italian and assisting with the lift on 17 November were Mr Acuri and his employee or employees.

29. [40]

    The primary judge reasoned, as has been seen, that the moving and stowing of the door was an enterprise jointly undertaken between employees of Bellevarde (Mr Rolfe and Mr Chui) and “persons acting on behalf of L’Officina” (Mr Malucci, one if not more of Mr Acuri and his employees, and Mr Espimaris). His Honour treated Mr Malucci, Mr Espimaris, and Mr Acuri and his employees as L’Officina’s “representatives”, without distinction. As a result, his Honour did not closely consider which of them was present. For reasons already given, there was no evidence to support the finding that Mr Malucci was present. Assuming, as I would, that Mr Acuri was involved, he was a subcontractor and not an employee of L’Officina. [44] He was so described by his Honour, [45] and that status is consistent with his Honour’s explanation, referred to above, that Mr Acuri was billing L’Officina for installation work done on site. [46] This status is crucial, because vicarious responsibility is not incurred for the negligence of an independent contractor. [47] Describing those present generally as “the L’Officina representatives” [48] and as “persons acting on behalf of L’Officina” [49] as his Honour did, without differentiation between Mr Malucci, Mr Espirmaris and Mr Acuri, does not assist because, as was said by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Sweeney v Boylan Nominees Pty Limited: [50]

30. [41]

    Their Honours proceeded to explain why, at least ordinarily, vicarious liability does not attend the negligent acts of an independent contractor (footnotes omitted): [51]

31. [42]

    As L’Officina does not incur vicarious liability for any negligence of Mr Acuri and his employees, and as Mr Malucci was not present, L’Officina’s liability must depend on the presence of the driver, and any anterior role of Mr Malucci in authorising it.

32. [43]

    Ultimately, I am unpersuaded that there was sufficient evidence to conclude that L’Officina owed any relevant duty of care to Mr Monahan. His Honour found it unnecessary to determine who it was who made the decision to move the door, but found that its movement was for the benefit of both Bellevarde and L’Officina, to ensure that the door was kept safe from damage whilst it remained on site and uninstalled. In my respectful view, the evidence such as it is favours the view that it was Bellevarde who determined that the door had to be moved. The requirement for it be moved arose from Bellevarde’s failure to have adequate footings in place for its installation, and desire for space on site. Some support for this is provided, as has been indicated, by the 20 November email, referred to above. [52] But even if there were some benefit to L’Officina in the enterprise, essentially by way of reducing the risk of damage to the door before it was installed, and L’Officina was motivated to cooperate in its temporary removal, it does not follow that L’Officina owed a duty of care to whomever Bellevarde might through Mr Rolfe enlist.

33. [44]

    More significantly, no one from L’Officina invited Mr Monahan to participate in the activity. There is no evidence that anyone from L’Officina was involved in planning or directing the carrying and lifting of the door. Even if Mr Espimaris or some other driver on behalf of L’Officina was involved in assisting with the lift, there is no evidence that he was involved in requesting, directing or orchestrating the activity. His position was not apparently different from that of Mr Monahan, who was found not to be guilty of contributory negligence. [53]

34. [45]

    As it seems to me, the activity was performed on a site which Bellevarde controlled, at the instigation of Bellevarde, under the supervision of a Bellevarde employee, by personnel recruited for the purpose by that Bellevarde employee, and was orchestrated and directed by Bellevarde’s employee. The evidence does not establish that L’Officina did more than provide the truck and driver, who may have been one of those recruited to assist in the lift.

35. [46]

    Bellevarde submitted that L’Officina’s interest and responsibility was accentuated by the contractual arrangements between Bellevarde and L’Officina, whereby L’Officina was obliged to ensure that safe work procedures were established and maintained for any works carried out under their subcontract, and in particular to provide all materials handling equipment required for execution of their works, including horizontal (but not vertical) movement, transport, unloading and hoisting. However, so far as can be ascertained, L’Officina’s responsibility was to supply and install various fittings, including the door. It had delivered the door, which was unable to be installed. It is by no means clear that the temporary removal of the door was part of “the execution of their work”. Moreover, the negligence found was not in failing to provide necessary materials handling equipment.

36. [47]

    In any event, the contractual arrangements between the head contractor Bellevarde and its subcontractor L’Officina would be of slight if any relevance to the duty of care owed by either of them to Mr Monahan.

Conclusion

1. [48]

   For the foregoing reasons, I have concluded that the evidence does not support a finding that L’Officina owed or breached a relevant duty of care to Mr Monahan. Mr Monahan was injured when working on a site controlled by Bellevarde, in an activity instigated by Bellevarde, at the request of Bellevarde’s employee, in an operation orchestrated by Bellevarde’s employee, for the temporary removal of the door from the site, for the purposes of which L’Officina provided a truck and driver, but in the conduct of which it is not shown otherwise to have been implicated. Probably, the two unidentified personnel assisting were Mr Acuri and his employee, who were independent subcontractors, for whose negligence if any L’Officina is not vicariously liable. In circumstances where L’Officina did not owe Mr Monahan a relevant a duty of care, it follows that Bellevarde – who did – must alone be liable.

2. [49]

   It follows that in my opinion L’Officina’s cross-appeal should be allowed, the judgment against L’Officina set aside, and the judgment on the cross-claim against L’Officina also set aside. Bellevarde’s appeal must be dismissed. Bellevarde should pay L’Officina’s costs at first instance and of the appeal and cross-appeal.

3. [50]

   I propose the following orders:

   1. (1)

      Dismiss the appeal.

   2. (2)

      On the cross-appeal, set aside the orders made on 10 May 2022 and in lieu thereof:

   3. (3)

      Liberty to apply within fourteen days to vary any of the above orders, any such application to be made by written submission lodged with the Associate to Brereton JA.

   4. (4)

      Liberty to apply within fourteen days for any necessary direction in respect of restitution.

4. [51]

   SIMPSON AJA: I agree with Brereton JA.