Haralambopoulos v Longin - [2011] NSWSC 852

Supreme Court

New South Wales

Medium Neutral Citation: Haralambopoulos v Longin [2011] NSWSC 852
Hearing dates: 8-9 April, 14 April 2011
Decision date: 28 July 2011
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Judgment for the plaintiff in a sum to be calculated. The defendant to pay the plaintiff's costs as agreed or assessed.

Catchwords: TORTS - negligence - dangerous premises - injuries to persons entering premises - invitees - plaintiff visiting domestic building site - fall through void for proposed stairwell to floor below - no physical barriers in place - whether risk obvious - whether plaintiff not aware of risk - whether contributory negligence - DAMAGES - measure and remoteness of damages in actions for tort - measure of damages - personal injuries - loss of earnings and earning capacity - change in work circumstances - assessment of earnings not based on past earnings but upon basis of that of replacement salesman
Legislation Cited: Occupational Health and Safety Regulation 2001
Civil Liability Act 2002
Cases Cited: Francis & Ors v Lewis [2003] NSWCA 152
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728
Category: Principal judgment
Parties: John Haralambopoulos (Plaintiff)
Goran Longin (First defendant)
Nerina Longin (Second defendant)
Representation: Counsel:
Mr D Campbell SC with Mr S Longhurst (Plaintiff)
Mr D Priestley (Defendants)
Solicitors:
Carroll & O'Dea (Plaintiff)
Lander & Rogers (Defendants)

File Number(s): 2010/81460

Judgment

HIS HONOUR: Mr Goran Longin and Ms Nerina Longin were owner builders of a two-storey three-bedroom home which was under construction in Kiama. Mr John Haralambopoulos attended the premises on 10 April 2008 in order to provide a quote for the construction of a pergola. He fell through a hole from the first floor to the ground floor and suffered significant injuries. He claims that Mr and Ms Longin were negligent.

The scene

The home was at lock-up stage and the interior was being fitted out. The land sloped from the front of the block to the rear. The upper floor of the home, which was directly accessed via a door at the front, generally comprised the living areas. The lower level comprised the sleeping quarters. A garage was at the front of the house, adjacent to the front door. At the rear of the upper floor there was a balcony and it was there that the proposed pergola was to be constructed.

Interior movement between the two floors was to be by way of stairs which were to be constructed adjacent to the hallway which connected the front entry to the lounge-dining room. There was a rectangular hole in the floor of the upper level where the stairs were going to be built. In the meantime, boards were placed over the hole. They were not affixed but could be moved so as to permit access between the two floors via a ladder. Obviously, when access was not required, prudence dictated that the boards completely covered the…

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 Haralambopoulos v Longin

Details

AGLC: Haralambopoulos v Longin [2011] NSWSC 852
Case: [2011] NSWSC 852
Decision Date: 28 July 2011

CaseChat Overview and Summary

The plaintiff, Haralambopoulos, brought an action against the defendant, Longin, alleging that Longin was negligent in allowing the plaintiff to fall through a void in a building site, resulting in personal injury. The case was heard in the Supreme Court of South Australia. The primary issue before the court was whether Longin owed a duty of care to the plaintiff, and if so, whether Longin breached that duty by failing to provide adequate safety measures at the building site. Additionally, the court had to determine if the plaintiff's injuries were caused by Longin's negligence and if the plaintiff was contributorily negligent. The court also considered the measure and remoteness of damages, specifically the plaintiff's loss of earnings and earning capacity due to the injury.

The court found that Longin owed a duty of care to the plaintiff as an invitee on the premises. The court held that the risk of falling through the void was not obvious to the plaintiff, and thus Longin had a responsibility to ensure the site was safe. The court further determined that Longin breached this duty by not providing adequate physical barriers or warnings at the site. In assessing the plaintiff's contributory negligence, the court found that while the plaintiff was aware of the void, they did not appreciate the danger it posed. The court concluded that the plaintiff's injuries were directly caused by Longin's negligence and not due to the plaintiff's contributory negligence. Regarding damages, the court assessed the loss of earnings and earning capacity based on the plaintiff's capacity to perform their job as a salesman, rather than on past earnings alone.

In summary, the court found in favour of the plaintiff, holding that Longin was liable for the plaintiff's injuries due to negligence. The court awarded the plaintiff damages for loss of earnings and earning capacity. The court ordered Longin to pay the plaintiff the assessed damages, including compensation for past and future loss of earnings and earning capacity, as well as any other relevant costs associated with the injury.

Orders