De Candia v Holmes

[2005] QDC 242

DISTRICT COURT OF QUEENSLAND

CITATION:	De Candia v Holmes [2005] QDC 242
PARTIES:	ANNABELLA DOUGALL DE CANDIA (ALSO KNOWN AS ANNABELLA CONNOLLY) Plaintiff v ELSIE JANE HOLMES (ALSO KNOWN AS JEAN HOLMES) Defendant
FILE NO/S:	BD2170 of 2002
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court of Queensland, Brisbane
DELIVERED ON:	10 August 2005
DELIVERED AT:	Brisbane
HEARING DATES:	20,21 July 2005
JUDGE:	Robin QC DCJ
ORDER:	(Subject to submissions) Judgment for the plaintiff for $23,367.85 and costs on Magistrates’ Court scale
CATCHWORDS:	Defendant occupier held liable in negligence – where plaintiff was injured when she fell in the dark, walking off a low unguarded ramp – ramp gave access to back door of house where plaintiff failed to rouse the defendant who was expecting her arrival – plaintiff’s intention was to walk to front door to attract defendant’s attention – plaintiff’s contributory negligence – she had previously visited (and stayed at) the house, using the ramp, which she had successfully ascended on the night – danger assessed for fractured shoulder of plaintiff (77 at trial) – large Griffiths-Kerkemeyer component – whether plaintiff entitled to recover special damages for treatment and car washing of which defendant was never apprised – UCPR rule 548.
COUNSEL:	Mr R A Myers for the plaintiff Mr D J Kelly for the defendant
SOLICITORS:	Shine Roche McGowan for the plaintiff Tress Cox for the defendant

REASONS FOR JUDGMENT

[1]      The parties are sisters-in-law, the plaintiff being married to the defendant’s younger brother.  The defendant’s unwillingness to acknowledge liability in respect of a fall the plaintiff had at her house on 8 June 1999 (perhaps at the insistence of an insurer) has created a rift in the family.  At that date, the plaintiff’s and the defendant’s ages were about 71 and 76 respectively.  The defendant was a widow living alone, hard of hearing and apparently very security conscious.

[2]      On the day in question, the plaintiff’s husband, Mr Connolly, was admitted to the Wesley Hospital for heart surgery.  They lived at Wolffdene.  As a favour to them, the defendant agreed to take in the plaintiff’s dog, and that the plaintiff might stay with her overnight while the hospitalisation continued.

[3]      Judging from the photographs in Exhibit 3, the defendant’s property at 9 Balcha Street, Holland Park slopes fairly steeply from left to right from the viewpoint of an observer in the street.  It seems also to slope from front to rear.  The house (now demolished) was at or close to ground level on the uphill side (at the front at least), and was raised several courses of bricks on the downhill side.  There were four or five steps to the centrally located front door, more steps centrally located at the back door, which gave on to a laundry and patio area some three steps down from the main floor level of the house.  This external laundry area was able to be locked off (as it was at material times) by means of a batten door.  At…