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Jandson Pty Ltd v Welsh

Jandson Pty Ltd v Welsh

Case [2008] NSWCA 317 3 December 2008

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Appeal Outcome: Special leave application dismissed with costs by the High Court 5 June 2009 (S581/2008)

New South Wales

Court of Appeal

CITATION: Jandson Pty Ltd v Welsh [2008] NSWCA 317

HEARING DATE(S): 28 October 2008

JUDGMENT DATE:
3 December 2008

JUDGMENT OF: Giles JA at 1; Macfarlan JA at 2; Hammerschlag J at 68

DECISION: (By majority) Appeal dismissed with costs.

CATCHWORDS: TORTS - negligence - duty of care - occupier of display home - invitee injured after not noticing steps - foreseeability of injury - DAMAGES - whether redundancy payment to be credited against damages

CATEGORY: Principal judgment

CASES CITED: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Clay v Freda (Supreme Court of South Australia King CJ, Mohr and Millhouse JJ 1 July 1988, unreported)
Hall v Cramer [2003] ACTSC 112; (2004) 40 MVR 477
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Owners of Strata Plan 63477 v Ross [2005] NSWCA 162
Wall and Lambe v Wall (1998) 201 LSJS 164

TEXTS CITED: H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths

PARTIES: Jandson Pty Ltd (Appellant)
Judith Carol Welsh (Respondent)

FILE NUMBER(S): CA 40077/08

COUNSEL: L King SC/D Priestley (Appellant)
S Norton SC/M Fraser (Respondent)

SOLICITORS: Thompson Cooper Lawyers (Appellant)
Brydens Compensation Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5400/06

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 19 March 2008

CA 40077/08
DC 5400/06

GILES JA
MACFARLAN JA
HAMMERSCHLAG J
Wednesday 3 December 2008

JANDSON PTY LTD v JUDITH CAROL WELSH

Judgment

1 GILES JA: I agree with Macfarlan JA.

2 MACFARLAN JA: On 14 January 2006 the respondent was injured when she fell on to a timbered area of the floor in a display house owned and occupied by the appellant for commercial purposes. The house was in a Display Centre at Kellyville in the State of New South Wales.

3 The respondent brought proceedings against the appellant in the District Court claiming that the appellant as occupier of the house had breached a duty of care owed to the respondent.

4 The trial judge, Ashford DCJ, found that the appellant owed a duty of care to the respondent and had breached that duty, with the consequence that the respondent was injured. A judgment was given for the respondent in the amount $331,938. The appellant appealed to this Court against that judgment.

5 The circumstances of the accident were described by her Honour in the following terms:

“3. On 14 January 2006 the plaintiff and her husband attended the New Homeworld Display Centre at 24 Bluebell Circuit Kellyville. A display home called “The Eclipse” was located within that centre. The plaintiff and her husband had sold their own house and were in the process of building a new one and they had gone to this centre to look…

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 Jandson Pty Ltd v Welsh

Details

AGLC: Jandson Pty Ltd v Welsh [2008] NSWCA 317
Case: [2008] NSWCA 317
Decision Date: 3 December 2008

CaseChat Overview and Summary

Jandson Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment awarding damages to Mr. Welsh for injuries sustained when he fell down steps at a display home owned and occupied by Jandson. Mr. Welsh, an invitee, had not noticed the steps and had fallen, sustaining injuries.

The primary legal issues before the Court of Appeal were whether Jandson owed Mr. Welsh a duty of care, whether that duty had been breached, and whether the injury was foreseeable. Additionally, the court considered whether a redundancy payment received by Mr. Welsh should be credited against the damages awarded.

The majority of the Court of Appeal (Giles JA and Macfarlan JA) found that Jandson owed Mr. Welsh a duty of care as an occupier to ensure the safety of invitees. They held that the presence of the steps, particularly in the context of a display home where visitors might be distracted, presented a foreseeable risk of injury. The court determined that Jandson had breached this duty by failing to adequately warn or make the steps apparent. Regarding the redundancy payment, the majority concluded that it was not a payment that should be credited against the damages awarded for the personal injury. Hammerschlag J dissented on the question of breach.

Consequently, the appeal was dismissed by majority, and Jandson Pty Ltd was ordered to pay Mr. Welsh's costs.

Orders

Orders of the court

(By majority) Appeal dismissed with costs.

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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Citations

AGLC Citation

Jandson Pty Ltd v Welsh [2008] NSWCA 317

Most Recent Citation

Blair Robert Kennedy v CCB (ACT) Pty Limited t/as Construction Conrol [2012] ACTSC 117

Cases citing this decision · 12 of 12 shown

Zaidan v Vicinity Centres PM Pty Limited t/as Roselands Shopping Centre
[2020] NSWDC 852 Para 25

…a reasonable response, viewed prospectively: see Simon Felice v St George Masonic Club [2017] NSWDC 276, where I referred to Jandson Pty Ltd v Welsh [2008] NSWCA 317 at 21, 23 and 25, referring to B ankstown Foundry Pty Ltd v Braistina [1986] 160 CLR 301; [1986] HCA at p 309; Drotem Pty Limited v Manning [2000] NS…
Cornwall v Jenkins as Trustee for the iSpin Family Trust
[2020] ACTCA 2

…214 CLR 118 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hamilton v Nuroof (WA) Ptd Ltd (1956) 96 CLR 18 Jandson Pty Ltd v Welsh [2008] NSWCA 317 Meandarra Ariel Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42;…
Simon Felice v St George Masonic Club
[2017] NSWDC 276 Para 36

…reasonable precautions. That history is to be weighed in the balance of what was a reasonable response, viewed prospectively: Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [21], [23] and [25], referring to Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 309; Drotem Pty Limited v Manning [20…
McKenzie v Day (No 2)
[2016] NSWDC 373 Para 30

…Mr Knowles drew my attention to the decision of the Court of Appeal in Jandson Pty Ltd v Walsh [2008] NSWCA 317 where the principal judgment was delivered by Mcfarlan JA with whom Giles JA concurred. That was another misstepping case over a few steps which the plaintiff in that case had not seen. Commencing at [20]…
Ellery v Sunsail (Australia) Pty Ltd
[2014] QDC 285 Para 1

…Ms Willson referred me to Jandson Pty Ltd v Welsh [2008] NSWCA 317, a case Mr Cullinane handed up. Macfarlan JA, at [46], referred to Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, a case involving injury to an employee, at 310-311 where, Mason, Wilson and Dawson JJ said,…
Campton v Centennial Newstan Pty Ltd (No 2)
[2014] NSWSC 1799

…ranklins Limited v Burns [2005] NSWCA 54 Gordon v Truong [2014] NSWCA 97 Government Insurance Office v Lazar [1991] NSWCA 123 Jandson Pty Ltd v Welsh [2008] NSWCA 317 Jones v Dunkel (1959) 101 CLR 298 Knight v Anderson (1997) 26 MVR 105 Mead v Kerney [2012] NSWCA 215 Medlin v State Government Insurance Commission […
Windley v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl
[2014] QDC 124 Para 1

…merely because another incident had not occurred during glow in the dark bowling does not mean the risk is insignificant (see Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [20]-[25]).…
Josephine Williams v Landsdowne Partners Pty Ltd t/as 202 Broadway
[2013] NSWDC 154 Para 1

…ar prior incidents, that does not negate the inference that there was a not insignificant risk of someone being injured - see Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [23]. I find the risk was not insignificant.…
Blair Robert Kennedy v CCB (ACT) Pty Limited t/as Construction Conrol
[2012] ACTSC 120 Para 26

…istina (1986) 160 CLR 301, which was applied by the New South Wales Court of Appeal in an occupier’s liability context in Jandson Pty Ltd v Welsh [2008] NSWCA 317 (unreported).…
Hamllton v Duncan
[2010] NSWDC 90

…ides Australia Inc v McMartin [2006] NSWCA 20 Jaenke v Hinton (Supreme Court of Queensland, Court of Appeal, 3 November 1995) Jandson Pty Ltd v Welsh [2008] NSWCA 317 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 Vairy v Wyong Shire Council […
High Court Bulletin
[2009] HCAB 4

…Special leave dismissed with costs. Appealed from NSW SC (CA): [2008] NSWCA 317.…
Jandsen Pty Ltd v Welsh
[2009] NSWCA 33 Para 1

…wn two steps onto a timbered area of the floor in a display home owned and occupied by the applicant for commercial purposes: Jandson Pty Ltd v Welsh [2008] NSWCA 317. Her Honour awarded the respondent damages in the sum of $331,938.…

View all 12 citing cases →

Cases cited in this decision · 6 of 6 shown

Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42

…24 I consider the situation here to be different from that in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 where the activity which led to the injury was the intentional, recreational one of diving from a bridge. Depending on the circumstances, that may or may not involve a sig…
Neindorf v Junkovic
[2005] HCA 75

…JJ 1 July 1988, unreported) Hall v Cramer [2003] ACTSC 112; (2004) 40 MVR 477 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Owners of Strata Plan 63477 v Ross [2005] NSWCA 162 Wall and Lambe v Wall (1998) 201 LSJS 164 TEXTS CITED: H Luntz, Assessment of…
Owners of Strata Plan 63477 v Ross
[2005] NSWCA 162

…0 MVR 477 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Owners of Strata Plan 63477 v Ross [2005] NSWCA 162 Wall and Lambe v Wall (1998) 201 LSJS 164 TEXTS CITED: H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths PARTI…
Glenda Margaret Hall v Yvonne Cramer
[2003] ACTSC 112

…1986] HCA 20; (1986) 160 CLR 301 Clay v Freda (Supreme Court of South Australia King CJ, Mohr and Millhouse JJ 1 July 1988, unreported) Hall v Cramer [2003] ACTSC 112; (2004) 40 MVR 477 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Owners of Strata Plan 634…
Jones v Bartlett
[2000] HCA 56

…e Court of South Australia King CJ, Mohr and Millhouse JJ 1 July 1988, unreported) Hall v Cramer [2003] ACTSC 112; (2004) 40 MVR 477 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Owners of Strata Plan 63477 v Ross [2005] NSWCA 162 Wall and Lambe v Wall (…
Bankstown Foundry Pty Ltd v Braistina
[1986] HCA 20

…- DAMAGES - whether redundancy payment to be credited against damages CATEGORY: Principal judgment CASES CITED: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Clay v Freda (Supreme Court of South Australia King CJ, Mohr and Millhouse JJ 1 July 1988, unreported) Hall v Cramer [2003] ACTSC…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	Jandson Pty Ltd v Welsh [2008] NSWCA 317
HEARING DATE(S):	28 October 2008
JUDGMENT DATE:	3 December 2008
JUDGMENT OF:	Giles JA at 1; Macfarlan JA at 2; Hammerschlag J at 68
DECISION:	(By majority) Appeal dismissed with costs.
CATCHWORDS:	TORTS - negligence - duty of care - occupier of display home - invitee injured after not noticing steps - foreseeability of injury - DAMAGES - whether redundancy payment to be credited against damages
CATEGORY:	Principal judgment
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Clay v Freda (Supreme Court of South Australia King CJ, Mohr and Millhouse JJ 1 July 1988, unreported) Hall v Cramer [2003] ACTSC 112; (2004) 40 MVR 477 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Owners of Strata Plan 63477 v Ross [2005] NSWCA 162 Wall and Lambe v Wall (1998) 201 LSJS 164
TEXTS CITED:	H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths
PARTIES:	Jandson Pty Ltd (Appellant) Judith Carol Welsh (Respondent)
FILE NUMBER(S):	CA 40077/08
COUNSEL:	L King SC/D Priestley (Appellant) S Norton SC/M Fraser (Respondent)
SOLICITORS:	Thompson Cooper Lawyers (Appellant) Brydens Compensation Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5400/06
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	19 March 2008