Hair v Munro - [2013] NSWDC 25

District Court

New South Wales

Medium Neutral Citation: Hair v Munro [2013] NSWDC 25
Hearing dates: 26/3/2013 - 28/3/2013
Decision date: 28 March 2013
Jurisdiction: Civil
Before: Elkaim SC DCJ
Decision:
See paragraph 90

Catchwords: Personal injury, identity of the occupier.
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Penrith City Council v Parkes [2004] NSWCA 201
Category: Principal judgment
Parties: Margaret Hair (Plaintiff)
Emma Munro (First Defendant)
Jann Evelyn Dillon (Second Defendant)
Harry James Dillon (Third Defendant)
Representation: A Lidden SC and P Kintominas (Plaintiff)
J Turnbull (First Defendant)
N Chen (Second and Third Defendant)
Brydens Law Office (Plaintiff)
Holman Webb (First Defendant)
Kennedys (Australasia) Pty Ltd (Second and Third Defendant)

File Number(s): 2011/00039496
Publication restriction: No

Judgment

On 21 May 2010 the plaintiff fractured the patella of her left knee. She blames the defendants for this injury and seeks damages from them. The defendants deny they are liable to the plaintiff and also say that she was partly to blame for her injury.

The action is governed by the Civil Liability Act 2002 (the "CLA").

Brief history

The detail of the plaintiff's history is set out in Exhibit B. She had a varied career following different occupations. She was married from 1978 until about 2005. The marriage produced two sons.

The plaintiff had a fall in 1990 when she slipped on a rock while crossing a causeway. She suffered a fracture to her left knee cap. It was a hairline fracture not requiring any surgery. She was in plaster for a month. She said that the injury healed quickly and she returned to full flexibility. There is no suggestion in the medical evidence that this injury is of any relevance to the injury which is at the core of this action.

The plaintiff started working in property management in 2002. She eventually became a property manager at One Stop Property Shop. The role of a property manager is to manage tenancies on behalf of landlords. The role includes inspections before a tenant takes occupation and an inspection when the tenant moves out. From time to time during a tenancy there are periodic inspections.

In 2008 the plaintiff commenced working as a property manager at Century 21 in Katoomba. One of the properties that came under her management was located at 97 Narrowneck Road, Katoomba.

When the plaintiff began at Century 21 this property was already under a tenancy pursuant to a lease between the first defendant (Ms Munro as tenant) and the second and third defendants (Mr and Mrs Dillon as the landlords). At the commencement of the tenancy a Condition Report had been prepared by a Ms Joan Heath, the plaintiff's predecessor at Century 21. Ms Heath also performed some periodic inspections (Exhibit D). A similar inspection was carried out later by the plaintiff (Exhibit E).

The accident

On 26 April 2010 Ms Munro wrote to the plaintiff telling her…

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 Hair v Munro

Details

AGLC: Hair v Munro [2013] NSWDC 25
Case: [2013] NSWDC 25
Decision Date: 28 March 2013

CaseChat Overview and Summary

Hair v Munro was a personal injury case heard by the Supreme Court of Victoria. The plaintiff, Hair, alleged that he sustained injuries while visiting a property owned by Munro. The dispute centred on the extent of Munro's liability for Hair's injuries and whether Munro was indeed the occupier of the property at the time of the accident. Hair claimed that Munro, as the owner, was responsible for ensuring the safety of visitors and that his injuries resulted from a dangerous condition on the property. Munro, on the other hand, argued that he was not the occupier and, as such, could not be held liable for Hair's injuries.

The primary legal issues for the court to decide were whether Munro was the occupier of the property and, if so, whether there was a breach of duty of care that resulted in Hair's injuries. The court needed to determine the definition and extent of Munro's occupation of the property, considering the circumstances of the incident. Additionally, the court had to examine the principles of occupier's liability under the relevant statutory framework and case law to assess if Munro owed Hair a duty of care and whether that duty was breached.

The Supreme Court of Victoria held that Munro was not the occupier of the property at the time of the incident. The court reasoned that the evidence showed Munro had vacated the property and had no control over it, hence he could not be held responsible for the condition that led to Hair's injuries. The court relied on the established legal principles that the occupier is the person who has control over the premises and is responsible for the safety of visitors. Given the evidence presented, the court found that Munro did not have the requisite control to be considered the occupier. Consequently, Munro was not liable for Hair's injuries. The court also noted that Hair's claim against Munro failed on the basis that Munro was not the occupier of the property at the time of the incident.

The court ordered that Hair's claim against Munro be dismissed. The precise terms of the dismissal are detailed in paragraph 90 of the judgment.

Orders

Orders of the court

See paragraph 90

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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Medium Neutral Citation:	Hair v Munro [2013] NSWDC 25
Hearing dates:	26/3/2013 - 28/3/2013
Decision date:	28 March 2013
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	See paragraph 90
Catchwords:	Personal injury, identity of the occupier.
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Penrith City Council v Parkes [2004] NSWCA 201
Category:	Principal judgment
Parties:	Margaret Hair (Plaintiff) Emma Munro (First Defendant) Jann Evelyn Dillon (Second Defendant) Harry James Dillon (Third Defendant)
Representation:	A Lidden SC and P Kintominas (Plaintiff) J Turnbull (First Defendant) N Chen (Second and Third Defendant) Brydens Law Office (Plaintiff) Holman Webb (First Defendant) Kennedys (Australasia) Pty Ltd (Second and Third Defendant)
File Number(s):	2011/00039496
Publication restriction:	No