MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Howard v Holdaway |
Citation: | [2023] ACTMC 26 |
Hearing Dates: | 30 and 31 March 2023 |
Decision Date: | 1 August 2023 |
Before: | Magistrate Temby |
Decision: | (1) Judgment be entered for the Defendant. (2) The Plaintiff is to pay the Defendant’s costs of the proceedings. (3) Order 2 does not take effect for a period of seven days and, if within that period, either party makes an application for a different order, order 2 does not take effect until further order of the Court. |
Catchwords: | TORTS – NEGLIGENCE – Breach of duty – injury sustained opening sash window– breach of duty of care alleged – evidence does not establish Defendant knew or ought to have known of the risk of harm – breach of duty not established on the evidence |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 46, 99, 102, 168 Court Procedures Rules 2006 (ACT) r 1721 |
Cases Cited: | Cornwall v Jenkins as trustee for iSpin Family Trust [2019] ACTSC 34 Jennings v George Harcourt Management Pty Ltd [2018] ACTSC 33 Jones v Barlett [2000] HCA 56; (2000) 205 CLR 166 King v Stewart [1994] NSWCA 164 Limelight Cinemas Pty Ltd v Beatty [2018] ACTSC 18 Mcintosh v Canberra Choral Society [2022] ACTMC 16 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Atherden v Caldipp [2019] ACTSC 29 Primavera Holdings Pty Ltd v Golding [2018] ACTCA 30 Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 Short v Barrett [1990] NSWCA 164 Stannus v Graham (1994) Aust Torts Reports 81-293 |
Parties: | Kerry Howard ( Plaintiff) Edward Holdaway ( Respondent) |
Representation: | Counsel D Shillington ( Plaintiff) B Jones ( Defendant) |
| Solicitors Bradley Allen Love Lawyers ( Plaintiff) Moray & Agnew Lawyers ( Defendant) | |
File Number: | CS 46 of 2021 |
MAGISTRATE TEMBY:
Table of Contents
Introduction
The claim
Summary
Legislation
The Incident
The Plaintiff’s evidence
Defendant’s evidence
Expert evidence
Findings
Liability
Plaintiff’s evidence
Defendant’s evidence
Evidence of Andrew Holdaway
Observations in relation to the Defendant’s evidence
Findings
Application of facts to relevant provisions of the Wrongs Act
Conclusion
Contingent consideration of causation and contributory negligence
Causation
Contributory negligence
Contingent assessment of damages
Documentary evidence
Plaintiff’s evidence
Observations in relation to the Plaintiff’s evidence
Findings
Damages assessment
General damages
Loss of earnings/earning capacity
Out of pocket expenses
Domestic assistance
Summary of damages assessment
Costs
Orders
Introduction
1․Ms Howard, the Plaintiff, and Mr Holdaway, the Defendant, were friends.
2․On 28 July 2020, they agreed that the Plaintiff would stay in the Defendant’s bedroom in his house in Red Hill, ACT, whilst he travelled interstate to Queensland. The Plaintiff was having renovations undertaken at her house at this time. The defendant had four other people living at his house, whom he described as boarders.
3․The Plaintiff was to move in the next day, 29 July 2020. At around lunch time on 29 July 2020, she attended the Defendant’s house to drop off some of her belongings.…
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- AGLC
- Howard v Holdaway [2023] ACTMC 26
- Case
- [2023] ACTMC 26
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the defendant was negligent in failing to warn the plaintiff of the risks associated with opening the sash window. The court had to consider whether the defendant knew, or ought to have known, of the potential for harm from the sash window and whether the defendant took reasonable steps to mitigate such risks. The court also needed to determine if the evidence presented was sufficient to establish a breach of duty of care by the defendant.
The court found that the evidence did not establish that the defendant knew or ought to have known of the risk of harm associated with the sash window. The court considered that the plaintiff had not demonstrated that the defendant had a duty of care in relation to the window, nor that there was a breach of that duty. Consequently, the court ruled in favour of the defendant, finding that the plaintiff's claim for damages was not substantiated by the evidence presented. The court ordered that judgment be entered for the defendant and that the plaintiff pay the defendant's costs of the proceedings, subject to certain conditions.
Orders
Orders of the court
(1) Judgment be entered for the Defendant.
(2) The Plaintiff is to pay the Defendant’s costs of the proceedings.
(3) Order 2 does not take effect for a period of seven days and, if within that period, either party makes an application for a different order, order 2 does not take effect until further order of the Court.
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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