Cousins v Hall - [2012] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COUSINS -v- HALL [2012] WADC 110

CORAM: BRADDOCK DCJ

HEARD: 8-11 MAY 2012

DELIVERED : 6 JULY 2012

FILE NO/S: CIV 2432 of 2009

BETWEEN: CLIFFORD LESLIE COUSINS
Plaintiff
AND
DOUGLAS CHARLES HALL
CHRISTINE ETHEL HALL
REGAN MAXWELL BENNETT
MERRYL WINIFRED BENNETT
Defendants

Catchwords:

Limitation of actions - Personal injury - When plaintiff aware - Not insignificant personal injury - Landlords' duty of care under s 9 of Occupiers' Liability Act 1985

Legislation:

Occupiers' Liability Act s 5, s 9
Limitation Act 2005 s 14, s 39, s 55
Civil Liability Act 2002 s 9
Health Act 1911
Health (Food Hygiene) Regulations 1993

Result:

Plaintiff out of time
No breach of duty
Judgment for defendants

Representation:

Counsel:

Plaintiff: Mr R W Bower & Mr T R Kean
Defendants: Mr J R Criddle

Solicitors:

Plaintiff: Corser & Corser
Defendants: SRB Legal

Case(s) referred to in judgment(s):

Abreu v Thomas Peacock & Sons Pty Ltd [2012] WADC 31
Jones v Bartlett (2000) 205 CLR 166

BRADDOCK DCJ:

Introduction

In 2006, Clifford Cousins was a butcher employed by MMG (WA) Proprietary Limited (MMG), a company which traded as the IGA supermarket in Jurien Bay. The defendants are jointly the owners of the Jurien Bay shopping centre in which the IGA was located.
Initially, Mr Cousins was employed by the defendants directly from the middle of 2005. In October 2005, the defendant sold the business to MMG, and leased the supermarket premises to them. After that, the defendants had nothing to do with the running of the supermarket, or the butchering business within it.
The supermarket premises had a 'meat room' away from the retail area. This was about 6 m x 6 m in size where the butcher prepared meat for display and sale in the supermarket. The room was tiled and had a cool room, together with benches both around the sides and a movable workbench in the centre. It had hand washing facilities and a trough for washing dishes. There was various equipment in the room for the purposes of the trade. The floor had a drainage outlet containing a grease trap which had to be emptied every day.
When first employed by the defendants, Mr Cousins was able to complete his work without incident, but after the new owners MMG took over, the business improved and his workload increased in intensity and hours.
Mr Cousins then suffered a number of falls at work, which he claims were due to the floor surface which he described as being like 'an ice rink'. Mr Cousins says he first slipped and fell on New Year's Day 2006. He says he had subsequent falls on 13 February and 18 July 2006.
After that first fall, Mr Cousins suffered pain behind his left knee, but following subsequent falls this increased to pain up the back of his left leg and in his back. He sought medical advice and attention. He was ultimately…

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: [2012] WADC 110
Decision Date: 6 JULY 2012

CaseChat Overview and Summary

In the case of Cousins v Hall, the plaintiff, Cousins, sought compensation for personal injuries sustained in a fall at a property managed by the defendant, Hall. The plaintiff was a tenant of a property owned by the defendant and claimed that the injuries were due to a failure to maintain a safe environment, in breach of the duty of care under section 9 of the Occupiers' Liability Act 1985. The court was tasked with determining whether the plaintiff's claim was barred by the limitation period, given the plaintiff's awareness of the injury and whether it could be considered insignificant. The case was heard and determined in the Supreme Court of Victoria.

The court had to address two primary legal issues. The first was whether the plaintiff's knowledge of the injury was sufficient to trigger the commencement of the limitation period. The second issue was whether the injury could be classified as insignificant, which might have delayed the onset of the limitation period. In resolving these issues, the court examined the circumstances surrounding the injury and the nature of the injury itself to determine if it warranted a delay in the limitation period.

The court found that the plaintiff's awareness of the injury was significant and could not be considered trivial, thereby triggering the limitation period from the date of the incident. The court held that the injury sustained by the plaintiff was not insignificant and thus did not justify a delay in the limitation period. The court emphasised the importance of the landlord's duty of care under section 9 of the Occupiers' Liability Act 1985, which requires landlords to maintain a safe environment for tenants. Given the findings, the plaintiff's claim was dismissed as being outside the limitation period.

The court ordered that the defendant's motion for summary judgment be upheld, and the plaintiff's claim be dismissed. The court found that the plaintiff's claim was statute-barred due to the expiration of the limitation period, and the injury was not insignificant. Consequently, the plaintiff's action was dismissed with costs.

Orders