JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FRENCH -v- VAN DER GIEZEN [2013] WADC 173
CORAM: SCOTT DCJ
HEARD: 22-26 APRIL & 3 MAY 2013
DELIVERED : 8 NOVEMBER 2013
FILE NO/S: CIV 2122 of 2011
BETWEEN: EDMUND FRENCH
Plaintiff
AND
ADRIAAN VAN DER GIEZEN
DELYS ARNA VAN DER GIEZEN
First DefendantsJ M & E D MOORE PTY LTD (Formerly Charlotte Holdings Pty Ltd)
Second Defendant
Catchwords:
Plaintiff injured falling down stairs -Liability of occupier and builder - Turns on own facts
Legislation:
Occupiers' Liability Act 1985 s 4, s 5, s 8
Civil Liability Act 2002 s 5
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr D M Bruns
First Defendants : Mr D R Clyne
Second Defendant : Mr J R B Ley
Solicitors:
Plaintiff: Shine Lawyers
First Defendants : SRB Legal
Second Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Fisher v Stapley [2005] WASCA 16
Fitzpatrick v Job [2007] WASCA 63
Gannon v Gannon (1971) 125 CLR 629
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hanna‑Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174
Husher v Husher (1999) 197 CLR 138
M R & R C Smith Pty Ltd T/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Maclenan v Segar [1917] 2 KB 325
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
New South Wales Department of Housing v Hume [2007] NSWCA 69
New South Wales Land and Housing Corporation v Watkins [2002] NSWCA 19
Onetech Pty Ltd v Shaw [1999] WASCA 289
Owners Strata Plan 30889 v Perrine [2002] NSWCA 324
Phillis v Daly (1988) NSWLR 65
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Shoalhaven City Council v Pender [2013] NSWCA 210
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45
Stannus v Graham (1994) Aust Tort Reports 81‑0293
The Town of Port Hedland v Hodder [2012] WASCA 212
Voli v Inglewood Shire Council (1962‑1963) 110 CLR 74, 84
Watson v George (1953) 89 CLR 409
SCOTT DCJ:
Introduction
The first defendants were at all material times the registered proprietors of 279 Pinjarra Road, Mandurah (premises) and carried on business as electrical contractors as proprietors of Peel Electrical Services.
The second defendant was a registered builder.
During 1996 and 1997 the second defendant constructed alterations to the premises (works) which included three offices on the first floor…
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- AGLC
- French v Van Der Giezen [2013] WADC 173
- Case
- [2013] WADC 173
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the duty owed by the occupiers and the builder to the plaintiff. The occupier's duty was to ensure the staircase was safe for its intended purpose and complied with the relevant Building Code of Australia (BCA). The builder's duty was to take reasonable care in carrying out the building works to avoid a foreseeable risk of injury. The court found that the risk of harm in both cases was the inherent danger posed to users of the staircase. The plaintiff alleged that the builder was negligent in not ensuring there was a handrail on both sides of the staircase or a central handrail, and in not ensuring adequate slip resistance on the top of the step. However, the court found that there was no evidence of defective work in laying the tiles that would pose a risk for which the builder was liable. Additionally, the court was not satisfied that the slip resistance on the top of the step was inadequate.
The court concluded that the first defendants were not in breach of their duty of care to the plaintiff, and thus, they were not at fault. Similarly, the court found that the second defendant's duty to take reasonable care in carrying out the building works did not include a duty to ensure the staircase was safe for its intended purpose and complied with the relevant BCA. Therefore, the builder's claim was also dismissed. The court held that the obviousness of the risk and the expectation that users of a staircase would act reasonably and take care for their own safety were relevant considerations. Given these findings, the court ruled in favor of the defendants.
Orders
Orders of the court
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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
That does not however, result in a reasonable inference being drawn that it was necessary or was a reasonable response to identifiable harm: New South Wales Land and Housing Corporation v Watkins [2002] NSWCA 19 [78]. Mr French's claim that the first defendants were in breach of their duty of care to him and thereby at fault is not made out. The duty owed by the second defendant to Mr French is a duty to take reasonable care in carrying out the building works to avoid a foreseeable risk of injury to any person: Voli v Inglewood Shire Council (1962‑1963) 110 CLR 74, 84. It is not the duty which is pleaded by Mr French in the statement of claim namely a duty towards users of the staircase to ensure the staircase was safe for its intended purpose and complied with the relevant BCA. The risk of harm in the case against the second defendant is the same as that in the case against the first defendants. That is the inherent danger posed to users of the staircase. In the statement of claim the plaintiff alleges against the second defendant that the accident was caused by the negligence of the second defendant in that it:(a)failed to ensure there was a handrail on both sides of the staircase, or alternatively a central handrail, in accordance with:(i)section D2.17 of the relevant BCA;(ii)the approved plans; and/or(iii)the building contract(b)failed to ensure adequate slip resistance on top of the step. I have earlier articulated the basis for finding that I am not satisfied that the slip resistance on the top of the step to the staircase was inadequate. Further, the evidence which I accept is that the first defendants purchased the tiles and although the second defendant caused them to be laid there is no evidence that the work in laying the tiles was defective such as to pose a risk for which the second defendant is liable. I have also found, earlier in these reasons, that pursuant to the building contract the second defendant was obliged to undertake the building works in accordance with the approved plan and the relevant BCA. The terms of the building contract between the first defendants as occupier and the second defendant as builder, in so far as they relate to Mr French, are not determinative but are not irrelevant in considering the duty of care owed by the second defendant to Mr French: Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181. The obviousness of the risk is relevant in determining whether any response is required in relation to that risk. See Smith v Wyatt [162]. In considering what is reasonable it is relevant to take into account that users of a staircase are expected to act reasonably and take care for their own safety: Stannus v Graham (1994) Aust Tort Reports 81‑0293, 61,566. Plans drawn by Drafting and Design Den before the approved plan did not include handrails on any of the staircases (see exhibit 18). I accept Mr Van der Giezen's evidence that the approved plan was not submitted to the City of Mandurah by him from which I infer it was submitted by the second defendant.