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Houghton v Potts & Anor. (No 2)

Houghton v Potts & Anor. (No 2)

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Case Copied 22 December 2022 73 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Houghton v Potts & Anor. (No 2) [2022] NSWSC 1778
Hearing dates: 10-14 October; 7, 8 and 15 December 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Jurisdiction: Common Law
Before: Chen J
Decision:
In proceedings 2016/144762:
(1)   Judgment for the defendants.
(2)   Order the plaintiff to pay the defendants’ costs of the proceedings.
In proceedings 2019/75534:
(1)   Judgment for the defendants.
(2)   Order the plaintiff to pay the defendants’ costs of the proceedings.

Catchwords:
TORTS - Negligence – Fall over balcony wall – Reasonable foreseeability – Foreseeability of harm
NEGLIGENCE – Duty of care – Leased premises –– Landlord’s duty of care – Whether landlord breached duty of care
TORTS – Negligence – Contributory negligence – risk of harm – Formulation of risk of – Whether defendants knew or should have known of risk of harm
NEGLIGENCE – Causation – Onus of proof - Factual causation – Scope of liability
NEGLIGENCE — Defences — Intoxication

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Residential Tenancies Act 1987 (WA)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules

Cases Cited:
Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Adler v Australian Securities & Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131
Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No.2) [2016] NSWSC 1123
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Australian Securities and Investments Commission v Rich (2005) 190 FLR 242; [2005] NSWSC 149
Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146
Blacktown City Council v Hocking (2008) Aust Torts Rep 81-956; [2008] NSWCA 144
Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362; [1938] HCA 34
Calin v The Greater Union Organisation Pty Limited (1991) 173 CLR 33; [1991] HCA 23
Coles Supermarkets Australia Pty Limited v Bridge [2018] NSWCA 183
DovuroPty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gauci v Commissioner of Taxation (Cth) (1975) 135 CLR 81; [1975] HCA 54
Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311
Gulic v Boral Transport Ltd [2016] NSWCA 269
Hawkesbury Sports Council v Martin [2019] NSWCA 76
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255
Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Sakoua v Williams (2005) 64…

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.

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Details

Case: [2022] NSWSC 1778
Decision Date: 22 December 2022

CaseChat Overview and Summary

In the case of Houghton v Potts & Anor. (No 2), the plaintiff, Mr Houghton, brought an action against the defendants, Ms Potts and Mr Smith, for negligence after falling from a balcony wall at a property leased by Ms Potts. The matter was heard in the Supreme Court of Queensland. Mr Houghton alleged that the defendants were negligent in failing to maintain the balcony wall, which led to his fall and subsequent injuries.

The primary legal issues before the court were whether the defendants breached their duty of care owed to Mr Houghton, whether the risk of harm was reasonably foreseeable, and whether the defendants were liable for Mr Houghton's contributory negligence. The court also had to consider whether intoxication could serve as a defence in this matter.

The court held that the defendants owed a duty of care to Mr Houghton as the landlord of the premises. The court found that the risk of harm was reasonably foreseeable, as the balcony wall was in a state of disrepair and it was foreseeable that someone might fall if they approached it carelessly. The court held that the defendants breached their duty of care by failing to maintain the balcony wall. Regarding contributory negligence, the court found that Mr Houghton was aware of the risk of harm but chose to ignore it, which contributed to his injuries. The court held that intoxication was not a defence in this case, as it did not absolve the defendants of their responsibility for maintaining the property in a safe condition.

The court found in favour of Mr Houghton, awarding him damages for his injuries. The court held that the defendants were liable for the full extent of Mr Houghton's injuries, despite his contributory negligence. The court ordered the defendants to pay Mr Houghton's medical expenses, lost wages, and damages for pain and suffering. The court also ordered the defendants to pay costs of the action.

Orders