Borland v Makauskas

[2000] QCA 521

SUPREME COURT OF QUEENSLAND

CITATION:

Borland v Makauskas & Anor [2000] QCA 521

PARTIES:

PAUL MICHAEL BORLAND     
(plaintiff/respondent)
v
ALEX MAKAUSKAS and PAMELA FAY MAKAUSKAS
(defendants/appellants)

FILE NO/S:

Appeal No 6935 of 2000

SC No 2343 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2000

JUDGES:

Davies JA, Byrne and Wilson JJ
Judgment of the Court

ORDER:

Appeal allowed.  Set aside the judgment.  Set aside the jury’s verdicts on questions 1 and 2, substitute “no” as the verdict on each of questions 1 and 2, and order that the respondent’s action be dismissed. The appellants to recover against the respondent their costs of the trial proceeding, including reserved costs, if any, to be assessed. The appellants to recover against the respondent their costs of the appeal to be assessed.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE – DAMAGE – CAUSATION – CONTRIBUTORY NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – INVITEES – LIABILITY TO OCCUPIER – Respondent injured when he dived from fence into shallow water in canal – fence a little inside boundary between appellants’ property and canal – jury verdict that appellants breached duty of care by not installing warning sign – jury verdict that appellants breached duty of care by leaving in place fence which might serve as invitation to jump or dive into canal

THE JURY IN CIVIL PROCEEDINGS – VERDICTS AND FINDINGS – QUEENSLAND – Power of Court of Appeal to set aside jury verdict on liability – power of appellate court to substitute verdicts – power exercised with considerable caution and where only one possible verdict which could reasonably be given on the evidence – assessment of whether verdicts were such as to warrant intervention
Supreme Court Rules O 70 r 11
Uniform Civil Procedure Rules r 5, r 766 (1)(b), r 766(5)

Baird v Magripilis (1925) 37 CLR 321, followed
Colin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, followed
Conrad v The Chermside Hospitals Board [1982] QdR 242, applied
Evans v Davies [1991] 2 QdR 498, applied
Franklins Selfserve Pty Ltd v Bozinovska [1998] NSWCA; 14 October 1998, considered
Smith v McKeough (1953) 89 CLR 520, applied
Thiess v TCN Channel Nine Pty Limited (No.5) [1994] 1 QdR 156, applied
Wyong Shire Council v Shirt (1979-80) 146 CLR 40, followed
Zalewski v Turcarolo [1995] 2 VR 562, followed

COUNSEL:

P A Keane QC with KF Holyoak for the appellants
C E K Hampson QC with M Grant-Taylor SC for the respondent

SOLICITORS:

Barry & Nilsson for the appellants
McLaughlins (Southport)  for the respondent

1. THE COURT: Paul Michael Borland (the respondent) is a tetraplegic as the result of injuries he sustained when he dived from a fence on the appellants’ property into a canal on 18 March 1995. He sued the appellants for damages for negligence…