CITATION: Addison v The Owners – Strata Plan No. 32680 [2010] NSWDC 251 HEARING DATE(S): 22 July 2010
JUDGMENT DATE:
6 October 2010JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Judgment for the plaintiff for the sum of $154,651.
(2) Defendant pay plaintiff’s costs.
(3) Liberty to restore re costs.
(4) Exhibits retained for 28 days.CATCHWORDS: TORT - negligence - pathway across strata home units in use for many years as a short cut between a primary school and the main road - pathway visible at night for a short distance due to street lighting but otherwise unlit - plaintiff falls into a drain culvert which is visible during the day but not on a dark night - duty of care - whether duty of care breached - nature and extent of any obligation of the defendant to trespassers using the pathway at night - whether drain structure an obvious risk - contributory negligence - damages LEGISLATION CITED: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5F, 5H, 5I, 5G and 5S CASES CITED: Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4
Doubleday v Kelly [2005] NSWCA 151
Edson v Roads & Traffic Authority (2006) 65 NSWLR 453
Fallas v Mourlas (2006) 65 NSWLR 418; (2006) Aust Torts Reports 81-835; [2006] NSWCA 32
Miller v Galderisi [2009] NSWCA 353
New South Wales v Broune [2000] NSWCA 3
Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel Pty Ltd v Same [2009] NSWSC 1026
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773
Russell v Rail Infrastructure Corporation [2007] NSWSC 402
Schubert v Lee (1946) 71 CLR 589
State of NSW v Moss (2000) 54 NSWLR 536
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Talbot-Price v Jacobs [2008] NSWSC 189
Temora Shire Council v Stein (2004) 134 LGERA 407; [2004] NSWCA 236
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234; (2005) 214 ALR 452; (2005) 79 ALJR 904; (2005) Aust Torts Reports 81-795; [2005] HCA 19
Wyong Shire Council v Shirt (1980) 146 CLR 40; (1980) 60 LGRA 106; (1980) 29 ALR 217; (1980) 54 ALJR 283
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247PARTIES: Plaintiff: Dean Andrew Addison
Defendant: The Owners – Strata Plan No. 32680FILE NUMBER(S): 2844 of 2009 COUNSEL: Plaintiff: Mr A Lidden SC / Ms M Fraser
Defendant: Mr N PolinSOLICITORS: Plaintiff: Brydens Law Office
Defendant: Curwoods Lawyers
Judgment
Introduction
[1] The plaintiff by statement of claim filed on 30 June 2009 brings proceedings for damages for an accident he suffered on 10 August 2007 while walking along a path on an area of common property owned by Strata Plan No. 32680. The path…
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- Case
- [2010] NSWDC 251
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the defendants owed a duty of care to the plaintiff as a trespasser using the pathway at night, and if so, whether that duty was breached. The court considered the nature and extent of any obligation the defendants had to trespassers on the pathway, as well as whether the drain structure constituted an obvious risk. The plaintiff also claimed contributory negligence on the part of the defendants, and sought an assessment of damages.
The court found that the defendants did owe a duty of care to the plaintiff. It held that the defendants had control over the pathway, and the plaintiff's use of it was foreseeable. The court found that the risk of falling into the drain culvert was not obvious, and the defendants should have taken reasonable steps to mitigate this risk. The court also found that the plaintiff was contributorily negligent, but her damages were not reduced on this account. The court awarded the plaintiff $154,651 in damages, ordered the defendants to pay the plaintiff's costs, and granted liberty to restore on costs. The exhibits were retained for 28 days.
Orders
Orders of the court
(1) Judgment for the plaintiff for the sum of $154,651.
(2) Defendant pay plaintiff’s costs.
(3) Liberty to restore re costs.
(4) Exhibits retained for 28 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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