Dillon v Hair - [2014] NSWCA 80

Court of Appeal

New South Wales

Case Title: Dillon v Hair

Medium Neutral Citation: [2014] NSWCA 80

Hearing Date(s): 19 February 2014

Decision Date: 26 March 2014

Before: Macfarlan JA at [1]
Emmett JA at [2]
Tobias AJA [22]

Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - Civil Liability Act 2002 - personal injury - occupier's liability - risk of movement under foot of mat placed on polished floor - whether a reasonable person in the circumstances of the appellant would have taken precautions - whether the primary judge failed to consider evidence

Legislation Cited: Civil Liability Act 2002 (NSW)

Cases Cited: Phillis v Daly (1998) 15 NSWLR 65

Category: Principal judgment

Parties: Harry Dillon (First Appellant)
Jann Dillon (Second Appellant)
Margaret Hair (First Respondent)
Emma Munro (Second Respondent)

Representation

- Counsel: Counsel:
J E Sexton SC / N E Chen (Appellants)
D Letcher QC / P Kintominas (First Respondent)
A J Turnbull (Second Respondent)

- Solicitors: Solicitors:
Kennedys (Appellants)
Brydens Law Office LP (First Respondent)
Holman Webb Lawyers (Second Respondent)

File Number(s): 2013/109474

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Elkaim SC DCJ

- Date of Decision: 28 March 2013

- Citation: Hair v Munro [2013] NSWDC 25

- Court File Number(s): 2011/00039496

Publication Restriction: None

JUDGMENT

MACFARLAN JA: I agree with Tobias AJA.
EMMETT JA: This appeal is concerned with the liability of the appellants, Mrs Jann and Mr Harry Dillon, for injuries suffered by the first respondent, Ms Margaret Hair, when Ms Hair slipped on a mat and fell in a dwelling occupied by Mr and Mrs Dillon. Ms Hair sued Mr and Mrs Dillon and the second respondent, Ms Emma Munro, a former tenant of the dwelling. Ms Hair obtained a verdict against Mr and Mrs Dillon in the District Court in the sum of $213,764. The District Court gave judgment for Ms Munro against Ms Hair and ordered Ms Hair to pay Ms Munro's costs. However, Mr and Mrs Dillon were ordered to indemnify Ms Hair in respect of the costs that she was ordered to pay to Ms Munro. Mr and Mrs Dillon have now appealed to this Court from the orders of the District Court.
In February 2008, Mr and Mrs Dillon and Ms Munro entered into a residential tenancy agreement in respect of a dwelling situated in Narrowneck Road, Katoomba (the Premises). The tenancy was for a term of 52 weeks with a holding over provision. Ms Munro entered into possession of the Premises under the tenancy agreement and held over after the expiration of the term. Later…

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 Dillon v Hair

Details

AGLC: Dillon v Hair [2014] NSWCA 80
Case: [2014] NSWCA 80
Decision Date: 26 March 2014

CaseChat Overview and Summary

The appellant, Dillon, brought proceedings against the respondent, Hair, alleging personal injury sustained due to the respondent's negligence as an occupier. The dispute concerned a risk of movement underfoot of a mat placed on a polished floor. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether a reasonable person in the circumstances of the appellant would have taken precautions to mitigate the risk of the mat moving, and whether the primary judge had failed to consider relevant evidence when making their determination.

The Court of Appeal considered the principles of occupier's liability under the *Civil Liability Act 2002* (NSW). It was held that the primary judge had correctly assessed the circumstances and the reasonableness of the precautions taken by the respondent. The Court found no error in the primary judge's assessment of the evidence or in the application of the relevant legal principles concerning the duty of care owed by an occupier to a visitor.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Case Title:	Dillon v Hair
Medium Neutral Citation:	[2014] NSWCA 80
Hearing Date(s):	19 February 2014
Decision Date:	26 March 2014
Before:	Macfarlan JA at [1] Emmett JA at [2] Tobias AJA [22]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - Civil Liability Act 2002 - personal injury - occupier's liability - risk of movement under foot of mat placed on polished floor - whether a reasonable person in the circumstances of the appellant would have taken precautions - whether the primary judge failed to consider evidence
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Phillis v Daly (1998) 15 NSWLR 65
Category:	Principal judgment
Parties:	Harry Dillon (First Appellant) Jann Dillon (Second Appellant) Margaret Hair (First Respondent) Emma Munro (Second Respondent)
Representation
- Counsel:	Counsel: J E Sexton SC / N E Chen (Appellants) D Letcher QC / P Kintominas (First Respondent) A J Turnbull (Second Respondent)
- Solicitors:	Solicitors: Kennedys (Appellants) Brydens Law Office LP (First Respondent) Holman Webb Lawyers (Second Respondent)
File Number(s):	2013/109474
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Elkaim SC DCJ
- Date of Decision:	28 March 2013
- Citation:	Hair v Munro [2013] NSWDC 25
- Court File Number(s):	2011/00039496
Publication Restriction:	None