Addison v The Owners - Strata Plan No. 32680 - [2010] NSWDC 251

CITATION: Addison v The Owners – Strata Plan No. 32680 [2010] NSWDC 251

HEARING DATE(S): 22 July 2010

JUDGMENT DATE:
6 October 2010

JURISDICTION: 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 247

PARTIES: Plaintiff: Dean Andrew Addison
Defendant: The Owners – Strata Plan No. 32680

FILE NUMBER(S): 2844 of 2009

COUNSEL: Plaintiff: Mr A Lidden SC / Ms M Fraser
Defendant: Mr N Polin

SOLICITORS: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWDC 251
Decision Date: 6 October 2010

CaseChat Overview and Summary

The plaintiff, Addison, brought an action against the Owners - Strata Plan No. 32680 in the Supreme Court of Victoria, claiming damages for personal injuries sustained when she fell into a drain culvert while using a pathway between a primary school and the main road. The pathway, in use for many years, was not lit at night but for a short distance by street lighting. The plaintiff argued that the defendants breached their duty of care, which led to her injuries. The defendants contended that they owed no duty of care to trespassers using the pathway at night, and even if they did, the risk posed by the drain structure was obvious.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Addison v The Owners – Strata Plan No. 32680 [2010] NSWDC 251
HEARING DATE(S):	22 July 2010
JUDGMENT DATE:	6 October 2010
JURISDICTION:	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 247
PARTIES:	Plaintiff: Dean Andrew Addison Defendant: The Owners – Strata Plan No. 32680
FILE NUMBER(S):	2844 of 2009
COUNSEL:	Plaintiff: Mr A Lidden SC / Ms M Fraser Defendant: Mr N Polin
SOLICITORS:	Plaintiff: Brydens Law Office Defendant: Curwoods Lawyers