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
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
Sign in free to access the full text
Details
AGLC
Allen v Strata Plan 54664 [2016] NSWDC 217
Case
[2016] NSWDC 217
Decision Date
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.