Howard v Holdaway

Case [2023] ACTMC 26


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

In the matter of Howard v Holdaway, the plaintiff sought compensation for injuries sustained while opening a sash window at the defendant's property. The dispute involved whether the defendant had breached a duty of care owed to the plaintiff, resulting in the plaintiff's injuries. The case was heard in the Supreme Court of New South Wales.

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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