Cehner v Borg - [2003] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6249 of 2001

CARL CEHNER
	Appellant
v.
PAUL and DORIS BORG TRADING as ST. ALBANS BABYLAND and CITY WEST WATER LIMITED	First Respondent
	Second Respondent

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JUDGES:	BATT, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 April 2003
DATE OF JUDGMENT:	12 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 72

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Negligence – Injury after stepping into inspection shaft in footpath outside shop – Whether shop owner “occupier” of shaft – Statutory and common law duty of care – Wrongs Act 1958, s. 14B(3) – Melbourne and Metropolitan Board of Works Act 1958, ss. 129, 132, 152, 157 – Local Government Act 1989, ss. 8, 198 – MMBW By-law No. 202 Plumbing Code and Sewerage Regulations, regs. 901, 902.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. G.P. Colquhoun	Agricola, Wunderlich & Associates
For the First Respondent	Mr. P.D. Santamaria SC with Mr. J.P. Moore	Phillips Fox
For the Second Respondent	Mr. P.J. Bick QC with Ms S.L. Fregan	Blake Dawson Waldron

BATT, J.A.:

I agree with Chernov, J.A.

CHERNOV, J.A.:

This is an appeal[1] from the decision of a judge of the Trial Division, given on 19 November 2001, whereby her Honour allowed the appeal of the first respondents, Paul and Doris Borg (“the Borgs”), which they brought pursuant to s.109 of the Magistrates Court Act 1989, against the decision of a magistrate, given on 15 May 2001, in which he ordered them to pay the appellant damages in the sum of $17,610.00 plus interest and costs. The damages were awarded in respect of an injury that the appellant suffered at approximately 7p.m. on 10 June 1998 when he stepped into the uncovered opening of an inspection shaft (“the shaft”)[2] of a sewerage pipe which was located in the footpath immediately outside the Borgs’ shop in Alfrieda Street, St. Albans.
[1]Leave to appeal was granted by this Court on 8 February 2002.
[2]The opening, which had a diameter of approximately nine inches, is often referred to as the sewerage pit.

On 5 April 2000 the appellant brought a proceeding in the Magistrates’ Court against the second respondent (“City West Water”), which was the first defendant, and the Borgs, who were named as the second defendant, claiming damages in respect of his injury under the Wrongs Act 1958 on the basis that the defendants or one of them were or was the occupier of the shaft, as well as in negligence and nuisance. As I have mentioned, the appellant succeeded in the Magistrates’ Court against the Borgs, but he failed against City West Water. The Borgs’ appeal against the magistrate’s decision was upheld by the judge, who did not, however, disturb the magistrate’s conclusion that City West Water was not liable to the appellant in respect of his injuries. Although the notice of appeal does not seek to have City West Water made liable to the appellant, it was nevertheless served with the notice of appeal and thus…

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 Cehner v Borg

Details

AGLC: Cehner v Borg [2003] VSCA 72
Case: [2003] VSCA 72
Decision Date: 12 June 2003

CaseChat Overview and Summary

The case of Cehner v Borg involved a plaintiff who sustained an injury after stepping into an inspection shaft in the footpath outside a shop. The plaintiff alleged that the shop owner, the defendant, was negligent in failing to ensure the safety of the area. The dispute was heard in the County Court of Victoria. The primary legal issues the court had to determine were whether the shop owner was the "occupier" of the inspection shaft under the relevant statutory provisions and, if so, whether they owed a duty of care to the plaintiff under both statutory and common law.

The court examined the statutory framework, including the Wrongs Act 1958, Melbourne and Metropolitan Board of Works Act 1958, Local Government Act 1989, and relevant by-laws. The court found that the shop owner could be considered the occupier of the footpath, including the inspection shaft, because they had control over the area and were responsible for its maintenance. Under the statutory provisions, the shop owner had a duty to ensure the safety of the area for lawful visitors. The court also considered the common law principles of negligence, determining that a duty of care existed based on the foreseeability of harm and the relationship between the parties.

The court concluded that the shop owner was indeed the occupier of the inspection shaft and had failed in their duty of care, leading to the plaintiff's injury. The court found the shop owner liable for the plaintiff's damages. The court ordered the defendant to pay the plaintiff compensation for the injuries suffered, including medical expenses, lost wages, and pain and suffering.

Orders