Hancock v Johnson

[2013] QDC 341

DISTRICT COURT OF QUEENSLAND

CITATION:

Hancock v Johnson & another [2013] QDC 341

PARTIES:

ANNETTE LEITH HAY HANCOCK
(plaintiff)

and

MICHELLE FRANCIS JOHNSON
(first defendant)

and

DAVID CHARLES JOHNSON
(second defendant)

FILE NO/S:

D4021/2010

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

4 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

31 January, 1 February 2013

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendants pay the plaintiff $445,515.90, including $11,554.79 by way of interest.

CATCHWORDS:

NEGLIGENCE – Dangerous premises – occupiers’ liability – concealed trap – whether occupiers knew or ought to have known of the presence of the trap

Jaenke v Hinton [1995] QCA 484 – applied.

COUNSEL:

R J Lynch for the plaintiff

R A I Myers for the defendants

SOLICITORS:

Shine Lawyers for the plaintiff

Sparke Helmore Solicitors for the defendants

1. The plaintiff is the widow of Carwood Hancock who passed away on 24 October 2009: Exhibit 25.  Prior to this he had operated a garden maintenance business, and on 7 October 2009, for the purpose of that business, he had gone to the defendants’ property.  While working there he stood on a metal lid over a cylindrical drainage pit in a corner of the property, which collapsed causing him to fall into the pit and injure his right knee.  This led to greatly reduced mobility,[1] as a result of which he developed a deep vein thrombosis in the right leg, which in turn led to a pulmonary embolism from which he died.  It is clear from the evidence of Professor Ansford, a specialist forensic pathologist who supervised the post-mortem, that the death was a consequence of that deep vein thrombosis, which in turn was a consequence of the injury to the right knee, which was caused by the fall:  p 72, Exhibit 34.  It follows that the fall was a cause of the death of the deceased[2], and I so find.

   [1]Plaintiff p 26; Fenech p 67.

   [2]Applying a commonsense test:  March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

1. The plaintiff claims damages for loss of dependency[3], and also claims on behalf of the estate of her late husband the cause of action which survives to the estate under the Succession Act 1981 s 66.[4]  The defendants deny that they knew or ought to have known of the presence of the drainage pit.  It was not submitted that, if they had known, or ought to have known, of its presence they were not liable, nor was any plea of contributory negligence on the part of the deceased raised.

   [3]Under Pt 4 of the Supreme Court Act 1995 then in place; the relevant provisions have been re-enacted in Pt 10 of the Civil Proceedings Act 2011.

   [4]Pursuant to the Civil Proceedings Act 2011 s 66. As a procedural provision, this section applies to the existing proceeding, and ultimately this part of the claim was not the subject of any specific contention.

Background

1. The drainage pit is essentially a concrete pipe of…