Elliot James Lawrence Stone v The Owners - Units Plan 1214 and Nectaria Nominees Pty Ltd and Debra Nominees Pty Ltd and Hawkesbury Nominees Pty Ltd

[2012] ACTSC 164

ELLIOT JAMES LAWRENCE STONE v THE OWNERS - UNITS PLAN 1214 AND NECTARIA NOMINEES PTY LTD AND DEBRA NOMINEES PTY LTD AND HAWKESBURY NOMINEES PTY LTD
 [2012] ACTSC 164 (25 October 2012)

OCCUPIER’S LIABILITY- Alleged fall from unguarded retaining walls on property boundaries - inadequacy of evidence to establish cause of injury - negligence of defendants in failing to guard retaining walls - whether liability avoided in circumstances of no prior history of accident or where independent contractors engaged in design and construction of developments - extent of duty of care of defendants to intoxicated plaintiff - extent of contributory negligence of intoxicated plaintiff - assessment of damages

Civil Law (Wrongs) Act 2002 (ACT)

Cole v South Tweed Heads Rugby League Football Club (2007) 217 CLR 469
Francis & Ors v Lewis [2003] NSWCA 152
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
NSW Department of Housing v Hume & Anor [2007] NSWCA 69
Roads and Transport Authority of NSW v Dederer (2007) 234 CLR 330
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Wyong Shire Council v Shirt (1980) 146 CLR 40

No. SC 214 of 2008

Judge:             Sidis AJ           
Supreme Court of the ACT

Date: 25 October 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 214 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:ELLIOT JAMES LAWRENCE STONE

Plaintiff        

AND:THE OWNERS UNIT - PLANS 1214       

First Defendant

NECTARIA NOMINEES PTY LTD

Second Defendant

DEBRA NOMINEES PTY LTD

Third Defendant

HAWKESBURY NOMINEES PTY LTD

Fourth Defendant

ORDER

Judge:  Sidis AJ
Date:  25 October 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Verdict and judgment for the defendants.

1. The plaintiff is to pay the defendants’ costs of the proceedings.  This order is suspended to allow any application for a special costs order to be listed in the week commencing 22 October 2012.

1. The exhibits will be retained for 28 days.

1. My reasons are published.

1. Mr Elliot James Lawrence Stone was very seriously injured on 22 March 2005, his 27th birthday.

1. An unknown person telephoned the Australian Federal Police and reported that the plaintiff was lying in a pool of blood in the driveway to a parking area within the property jointly owned by Nectaria Nominees Pty Ltd, Debra Nominees Pty Ltd and Hawkesbury Nominees Pty Ltd (referred to in these reasons as the second defendant).  The second defendant’s property comprised the commercial development known as Lakeview Square.

1. The first defendant, The Owners – Units Plan 1214, was the registered proprietor of the adjoining property known as Miramar Apartments. 

1. The plaintiff claimed that he suffered injury when he fell from a height of about 3.5 metres from the first defendant’s property onto the second defendant’s property. 

1. The plaintiff’s claim against the fifth defendant was resolved prior to the hearing of the action.

1. The claim raised the following issues:-

1.   Whether the plaintiff in fact fell in the manner claimed.

2.   Whether there was negligence…