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Allen v Strata Plan 54664

Allen v Strata Plan 54664

Case [2016] NSWDC 217 16 September 2016

Contributory Negligence

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Allen v Strata Plan 54664 [2016] NSWDC 217
Hearing dates: 4 and 5 April 2016; 3, 11 and 27 May 2016; written submissions to 10 June 2016
Date of orders: 16 September 2016
Decision date: 16 September 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff.
(2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages.
(3) Defendant pay plaintiff’s costs.
(4) Liberty to apply in relation to costs.
(5) Exhibits retained for 28 days.

Catchwords: TORT – negligence – resident of strata title premises trips on mat placed on top of elevator floor carpet to protect it while another occupant moves into the building – duty of care – breach of duty – defendant’s code of conduct for safe removals not complied with – obvious risk – contributory negligence – assessment of damages for non-economic loss and home care for 88-year old plaintiff
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5G, 5R and 5S
Evidence Act 1995 (NSW), ss 46 and 59
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Edson v Roads and Traffic Authority (2006) 65 NSWLR 453
Fallas v Mourlas (2006) 65 NSWLR 418
Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401
Gulic v O’Neill [2011] NSWCA 361
Hill v Richards [2011] NSWCA 291
In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44
Insurance Commissioner v Joyce (1948) 77 CLR 39
Jackson v McDonald's Australia Ltd [2014] NSWCA 162
Jones v Dunkel (1959) 101 CLR 298
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95
Neate v Fox (2012) 13 DCLR (NSW) 319
Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel Pty Ltd v Same [2009] NSWSC 1026
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Reece v Reece (1994) 19 MVR 103
Temora Shire Council v Stein (2004) LGERA 407
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234
Varga v Galea [2011] NSWCA 76
Woolworths Limited v Lawlor [2004] NSWCA 209
Wyong Shire Council v Shirt (1980) 146 CLR 40
Wyong Shire Council v Vairy (2004) Aust Torts Reports 81-754
Category: Principal judgment
Parties: Plaintiff: Shirley Allen
Defendant: Strata Plan 54664
Representation:
Counsel:
Plaintiff: Mr P Jones
Defendant: Mr N Chen
Solicitors:
Plaintiff: Graham Jones Lawyers
Defendant: McCulloch & Buggy Lawyers

File Number(s): 2014/258817
Publication restriction: None

Judgment

The plaintiff’s claim for damages

The plaintiff by statement of claim filed on 3 September 2014 brings proceedings for damages for injuries she suffered as a result of tripping when entering the lift…

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.

Continue reading Allen v Strata Plan 54664

Details

AGLC: Allen v Strata Plan 54664 [2016] NSWDC 217
Case: [2016] NSWDC 217
Decision Date: 16 September 2016

CaseChat Overview and Summary

The plaintiff, Allen, brought a claim against the defendant, Strata Plan 54664, seeking compensation for injuries sustained when she tripped on a mat placed on the elevator floor. Allen, an 88-year-old resident of the strata title premises, was attempting to move into the building when she fell and injured her hip. The dispute centred on whether the defendant owed a duty of care to Allen, whether this duty was breached, and if so, whether the breach caused the plaintiff's injuries. The matter was heard in the District Court of New South Wales.

The primary legal issues before the court were whether the defendant had a duty of care towards Allen and whether this duty was breached. Additionally, the court had to consider whether the risk of injury was obvious to Allen, and if so, whether this would mitigate the defendant's liability. The court also needed to assess Allen's contributory negligence, if any, and determine the appropriate quantum of damages for non-economic loss and home care.

The court found that the defendant owed a duty of care to Allen, which was breached by failing to follow its own code of conduct for safe removals. The court held that the risk of injury was not obvious to Allen, given her age and the circumstances of the incident. While Allen was found to have contributed to her injuries by not paying sufficient attention to her surroundings, this did not absolve the defendant of liability. The court awarded Allen damages for non-economic loss and for home care, taking into account her age and the severity of her injuries.

The court ordered judgment in favour of Allen and directed the defendant to pay her costs. The parties were granted liberty to bring in short minutes of order reflecting the agreed calculation of damages. The exhibits were to be retained for 28 days, and the parties were given liberty to apply in relation to costs.

Orders

Orders of the court

(1) Judgment for the plaintiff.

(2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages.

(3) Defendant pay plaintiff’s costs.

(4) Liberty to apply in relation to costs.

(5) 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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Citations

AGLC Citation

Allen v Strata Plan 54664 [2016] NSWDC 217

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 35 of 35 shown

Metaxoulis v McDonald's Australia Ltd
[2015] NSWCA 95 Para 208

…on from this sum should be made to take into account the observations of the New South Wales Court of Appeal in Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95. Mr Jones conceded this had not been done.…
Jackson v McDonald's Australia Ltd
[2014] NSWCA 162

…Technologies Pty Ltd v Taylor [2011] QCA 44 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Metaxoulis v McDonald's Austral…
Boral Bricks Pty Ltd v Cosmidis
[2013] NSWCA 443 Para 204

…In Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [93], Basten JA observed:…
Neate v Fox
[2012] NSWDC 2 Para 186

…expectancy tables remain largely the same, attitudes towards aging members of the community have changed since Reece v Reece . I note for example in Neate v Fox (2012) 13 DCLR (NSW) 319, Levy SC DCJ rejected similar submissions in the case of a 70 year old man, noting the devastating effect of injuries upon a plaint…
Gulic v O'Neill
[2011] NSWCA 361 Para 50

…als being allowed. It certainly is the case that caution must be exercised when considering the notes of busy emergency workers. In Gulic v O’Neill [2011] NSWCA 361 the Court:…
Hill v Richards
[2011] NSWCA 291 Para 51

…However, common sense must be exercised. In Hill v Richards [2011] NSWCA 291, two doctors recorded that a person at the scene of the accident had helped the plaintiff up, and the submission was made that the plaintiff’s denial of this, and failure to call the witness, meant this evidence should not be accepted. The…
Varga v Galea
[2011] NSWCA 76 Para 187

…In Varga v Galea [2011] NSWCA 76 at [72]-[74], McColl JA emphasised that age was only one of “numerous matters the court takes into account in its assessment of non-economic loss”:…
In Vitro Technologies Pty Ltd v Taylor
[2011] QCA 44

…y Ltd [2005] NSWCA 401 Gulic v O’Neill [2011] NSWCA 361 Hill v Richards [2011] NSWCA 291 In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298 Kappadoukas v Fransepp Pty Ltd [2006]…
Stojan (No 9) Pty Ltd v Kenway
[2009] NSWCA 364 Para 172

…ified by Bryson JA is what the person about to have the accident is doing at the time. Unlike the plaintiff in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 (who proceeded to continue up a stairway which was lighted at the bottom but where the lighting was blocked further up), the plaintiff had no alternative rou…
Adeels Palace Pty Ltd v Moubarak
[2009] HCA 48 Para 165

…on is determined by posing the question “but for the negligent act or omission, would the harm have occurred?” ( Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [45]) The negligent act or omission is not related to issues of inadequate lighting or failure to tape, but to the breaches of duty of care.…
Perrett v Sydney Harbour Foreshore Authority; Wine and Vine Personnel Pty Ltd v Sydney Harbour Foreshore Authority
[2009] NSWSC 1026 Para 169

…NSW) with concepts of breach of duty is explained by McCallum J in Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel Pty Ltd v Same [2009] NSWSC 1026, referring to Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874. As Bryson JA noted in Sutherland Shire Council v Henshaw [2004] N…
Mastronardi v State of New South Wales
[2009] NSWCA 270 Para 87

…nals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].”…
Mason v Demasi
[2009] NSWCA 227 Para 35

…s area has been stated by this court on a number of occasions: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2] ; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of…
Container Terminals Australia Ltd v Huseyin
[2008] NSWCA 320 Para 8

…is v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2] ; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011]…
Carey v Lake Macquarie City Council
[2007] NSWCA 4 Para 169

…duty is explained by McCallum J in Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel Pty Ltd v Same [2009] NSWSC 1026, referring to Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874. As Bryson JA noted in Sutherland Shire Council v Henshaw [2004] NSWCA 386 at [88], the concept of an obvious risk is elusi…
Kappadoukas v Fransepp Pty Ltd
[2006] NSWCA 366 Para 52

…I acknowledge that particular care is needed with ambulance notes. In Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366, ambulance notes, then copied by a triage nurse, contained material inconsistent with the plaintiff’s account of the accident. The Court of Appeal noted at [55]-[57] both that the ambulance staff we…
Edson v Roads and Traffic Authority
[2006] NSWCA 68 Para 172

…wards into the lift would have been an almost automatic reaction. This was, for her, a “well-worn path” ( Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 at [24]). It would not have occurred to the reasonable person, in the position of the plaintiff, exercising ordinary perception, intelligence and judgment (…
Fallas v Mourlas
[2006] NSWCA 32 Para 170

…As noted by Basten JA in Fallas v Mourlas (2006) 65 NSWLR 418 at [152], when determining whether the risk was obvious, the defendant must establish the level of particularity with which the risk in question should be identified. Looking at the test set out in Wyong Shire Council v Shirt (1980) 146 CLR 40, the question…
Ferguson v McDonalds Australia Pty Ltd
[2005] NSWCA 401 Para 49

…ntiary value. He drew my attention to the observations of the New South Wales Court of Appeal in cases such as Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401 at [81], where Tobias JA stated:…
Thompson v Woolworths (Qld) Pty Ltd
[2005] HCA 19 Para 169

…the accident is doing at the time. A helpful starting point is an examination of the principles set out in Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at [36]-[37]:…
Sutherland Shire Council v Henshaw
[2004] NSWCA 386 Para 169

…WSC 1026, referring to Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874. As Bryson JA noted in Sutherland Shire Council v Henshaw [2004] NSWCA 386 at [88], the concept of an obvious risk is elusive, depending upon physical conditions and what the person about to have the accident is doing at the…
Wyong Shire Council v Vairy
[2004] NSWCA 247 Para 172

…uld not have occurred to the reasonable person, in the position of the plaintiff, exercising ordinary perception, intelligence and judgment ( Wyong Shire Council v Vairy (2004) Aust Torts Reports 81-754 at [161]) that it was necessary to inspect a mat on the carpet of the lift and to consider how to stand on it without tripping. The…
Temora Shire Council v Stein
[2004] NSWCA 236 Para 172

…The next issue is whether the risk is the same or “very different for different classes of pedestrians” ( Temora Shire Council v Stein (2004) LGERA 407). What is relevant here is not that the plaintiff was a woman in her eighties, but that she was making a journey she had made thousands of times, namely travelling in a lift accessibl…
Woolworths Ltd v Lawlor
[2004] NSWCA 209 Para 185

…Reece v Reece was considered by the New South Wales Court of Appeal in Woolworths Limited v Lawlor [2004] NSWCA 209, where the plaintiff was assessed at 30% of the most extreme case. The plaintiff in those proceedings was 56 years old, and the amount awarded was considered to be reasonable in that she still had abo…
Davis v Council of the City of Wagga Wagga
[2004] NSWCA 34 Para 50

…hen warned that cases where such evidence was accepted (such as Ferguson v McDonalds Australia Pty Ltd and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34) resulted in appeals being allowed. It certainly is the case that caution must be exercised when considering the notes of busy emergency workers. In…
Christalli v Cassar
[1994] NSWCA 48

…made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed). [73] Age, however, is only one of the numerous matters the court takes into account in its a…
Reece v Reece
[1994] NSWCA 259 Para 183

…ff’s life expectancy of six years as a significant matter that “tells against anything other than a modest claim for non-economic loss”, citing Reece v Reece (1994) 19 MVR 103 and putting that non-economic loss at less than 20%.…
Dell v Dalton
[1991] NSWCA 76

…As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage “reflected the previous law”.”…
Thatcher v Charles
[1961] HCA 5

…ow requires, as assessed by reference to a “most extreme case”. In this respect, in my view however, Windeyer J’s remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71–72) remain cogent: Compensable loss depends not only on the severity of the physical injury but on the consequences for the indiv…
Jones v Dunkel
[1959] HCA 9

…Ltd v Taylor [2011] QCA 44 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95…
Jones v Dunkel
[1959] HCA 8 Para 62

…overseas and the plaintiff’s grandson suffered from an illness. Upon my indicating that I would draw an Jones v Dunkel inference ( Jones v Dunkel (1959) 101 CLR 298) in relation to the evidence of the granddaughter, an application was made to reopen the case and to call her. I granted leave for this to occur and Ms G…
Insurance Commissioner v Joyce
[1948] HCA 17 Para 103

…In Insurance Commissioner v Joyce (1948) 77 CLR 39, Rich J noted:…
Wyong Shire Council v Shirt
[1980] HCA 112 Para 170

…obvious, the defendant must establish the level of particularity with which the risk in question should be identified. Looking at the test set out in Wyong Shire Council v Shirt (1980) 146 CLR 40, the question of whether the risk was obvious as opposed to far-fetched or fanciful is a significant issue in this case. The risk was not…
Wyong Shire Council v Shirt
[1980] HCA 12 Para 170

…establish the level of particularity with which the risk in question should be identified. Looking at the test set out in Wyong Shire Council v Shirt (1980) 146 CLR 40, the question of whether the risk was obvious as opposed to far-fetched or fanciful is a significant issue in this case. The risk was not so obvious…
Pty Ltd v Sprowles
636 F Supp 1419

…ralia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 Neate v Fox (2012) 13 DCLR (NSW) 319 Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
5B, 5C, 5D, 5E, 5G, 5R, 5S 8 mentions (from Para 11)
Evidence Act 1995 (Cth)
46, 59 3 mentions (from Para 81)

Medium Neutral Citation:	Allen v Strata Plan 54664 [2016] NSWDC 217
Hearing dates:	4 and 5 April 2016; 3, 11 and 27 May 2016; written submissions to 10 June 2016
Date of orders:	16 September 2016
Decision date:	16 September 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff. (2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages. (3) Defendant pay plaintiff’s costs. (4) Liberty to apply in relation to costs. (5) Exhibits retained for 28 days.
Catchwords:	TORT – negligence – resident of strata title premises trips on mat placed on top of elevator floor carpet to protect it while another occupant moves into the building – duty of care – breach of duty – defendant’s code of conduct for safe removals not complied with – obvious risk – contributory negligence – assessment of damages for non-economic loss and home care for 88-year old plaintiff
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5G, 5R and 5S Evidence Act 1995 (NSW), ss 46 and 59
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 Fallas v Mourlas (2006) 65 NSWLR 418 Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401 Gulic v O’Neill [2011] NSWCA 361 Hill v Richards [2011] NSWCA 291 In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 Neate v Fox (2012) 13 DCLR (NSW) 319 Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel Pty Ltd v Same [2009] NSWSC 1026 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Reece v Reece (1994) 19 MVR 103 Temora Shire Council v Stein (2004) LGERA 407 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Varga v Galea [2011] NSWCA 76 Woolworths Limited v Lawlor [2004] NSWCA 209 Wyong Shire Council v Shirt (1980) 146 CLR 40 Wyong Shire Council v Vairy (2004) Aust Torts Reports 81-754
Category:	Principal judgment
Parties:	Plaintiff: Shirley Allen Defendant: Strata Plan 54664
Representation:	Counsel: Plaintiff: Mr P Jones Defendant: Mr N Chen Solicitors: Plaintiff: Graham Jones Lawyers Defendant: McCulloch & Buggy Lawyers
File Number(s):	2014/258817
Publication restriction:	None