Greenslade v Hiew - [2020] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GREENSLADE -v- HIEW [2020] WADC 120
CORAM:   STAUDE DCJ
HEARD:   4-8, 11-13 & 15 NOVEMBER 2019
DELIVERED          :   1 SEPTEMBER 2020
FILE NO/S:   CIV 285 of 2017
BETWEEN:   PHILIP EDWARD GREENSLADE
Plaintiff
AND
LEE KIM HIEW
Defendant

Catchwords:

Tort - Lessor's liability - Ceiling collapse in rental premises - Injury to tenant - Whether lessor under duty to inspect for latent defects - Turns on own facts

Damages - Personal injury - Cervical injury - Chronic neuropathic symptoms after surgery - Credibility findings - Surveillance evidence - Difficulty of assessing loss and damage where plaintiff's evidence is unreliable

Legislation:

Civil Liability Act 2002 (WA)
Occupiers Liability Act 1985 (WA)
Residential Tenancies Act 1987 (WA)

Result:

Plaintiff's claim dismissed
Damages assessed provisionally

Representation:

Counsel:

Plaintiff	:	Mr B Nugawela & Ms R Hinchliffe
Defendant	:	Mr T H Offer

Solicitors:

Plaintiff	:	Soul Legal (Perth)
Defendant	:	Sparke Helmore Lawyers

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

Cavalier v Pope [1906] AC 428
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Index to Judgment

Introduction

Principles of lessors' liability

The ceiling collapse

The premises

The expert evidence

Mr Barry Jones

Mr Philip Faigen

Factual findings on liability

Conclusion on liability

Quantum

Plaintiff's evidence

Prior history

Post-ceiling incident history

Economic loss evidence

Evidence of Hayley Greenslade

Joondalup Health Campus records

Evidence of Dr Richard Vaughan

Evidence of Dr Fazal Shabudin

Evidence of Dr Iain Russell

Evidence of Dr John Ker

Evidence of Dr Michael Veltman

Evidence of Dr Frederick Ng

Evidence of Dr Peter Silbert

Findings as to injury

Provisional assessment of damages

Plaintiff's claim

Past loss of earning capacity

Future loss of earning capacity

Past travelling expenses

Future travelling expenses

Past services

Future services

Future treatment expenses

Non-pecuniary loss

Summary

STAUDE DCJ:

Introduction

In January 2015, the defendant Mrs Hiew was the registered proprietor of residential premises in Currambine. The premises were leased to the plaintiff Mr Greenslade.
In the early hours of 11 January 2015, the ceiling of the family room collapsed catastrophically. According to Mr Greenslade, he was injured when part of the collapsed ceiling struck him on the head causing him to fall to the floor.
Mr Greenslade claims that Mrs Hiew is liable in damages for negligence. He alleges that she 'owed a duty of care to prevent the foreseeable risk of injury or harm to [him] whilst he was at the premises'. Mr Greenslade pleads that Mrs Hiew was negligent by:
(a)Failing to ensure that the ceiling in the family room of the premises was properly affixed to the premises.
(b)Failing to repair the ceiling in the family room of the premises as such that it would not collapse onto the plaintiff.
(c)Failing to implement and enforce a system of inspection, maintenance and repair of the ceiling in the family room at the premises.
(d)Allowing the plaintiff to enter the premises when…

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 Greenslade v Hiew

Details

AGLC: Greenslade v Hiew [2020] WADC 120
Case: [2020] WADC 120
Decision Date: 1 SEPTEMBER 2020

CaseChat Overview and Summary

In Greenslade v Hiew, the plaintiff, Greenslade, brought an action against the defendant, Hiew, in the Supreme Court of South Australia. The plaintiff alleged that the ceiling in the premises he was renting from the defendant had collapsed, causing him to suffer a cervical injury. The plaintiff claimed that the defendant, as the lessor, was liable for the injury because he failed to inspect the premises for latent defects prior to the lease. The court was required to determine whether the defendant had a duty to inspect the premises for latent defects and, if so, whether he breached that duty. The court also needed to determine the extent of the plaintiff's injuries and the appropriate quantum of damages.

The court considered the legal principles applicable to the case. It held that the defendant, as the lessor, owed a duty of care to the plaintiff, as the tenant, to ensure that the premises were fit for habitation. However, this duty did not extend to inspecting the premises for latent defects unless there were circumstances that put the defendant on notice of such defects. The court found that there were no such circumstances in this case. The court also considered the plaintiff's credibility and the difficulty of assessing the extent of his injuries and damages. The court found that the plaintiff's evidence was unreliable and that the surveillance evidence provided by the defendant was compelling. The court held that the plaintiff had failed to establish that the defendant was liable for his injuries.

The court awarded the plaintiff no damages. It held that the plaintiff had failed to establish the extent of his injuries or the extent to which they were caused by the ceiling collapse. The court found that the plaintiff's evidence was unreliable and that the surveillance evidence provided by the defendant was compelling. The court held that the plaintiff had failed to establish that the defendant was liable for his injuries or that he had suffered any damages as a result of the ceiling collapse. The court noted that the plaintiff's injuries were serious and that he would require ongoing treatment, but it found that there was insufficient evidence to determine the extent of his injuries or the appropriate quantum of damages.

Orders