Jankovic v Owners - Strata Plan 21894

District Court

New South Wales

Medium Neutral Citation:	Jankovic v Owners – Strata Plan 21894 [2017] NSWDC 199
Hearing dates:	12, 13, 14 and 17 July 2017
Date of orders:	04 August 2017
Decision date:	04 August 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1   verdict for the defendant; 2   the plaintiff to pay the defendant’s costs; 3   liberty to apply to vary the order regarding costs, if necessary; 4   the exhibits to be retained by the Court for 28 days and then returned to the parties.
Catchwords:	NEGLIGENCE - public liability – owners’ corporation – whether electrical system properly maintained – system of inspection and repair – whether reasonable PROOF – balance of probabilities – inferences – whether reasonable and definite ONUS – whether discharged on the evidence CONTRIBUTORY NEGLIGENCE DAMAGES – whether claim for gratuitous domestic assistance satisfies threshold
Legislation Cited:	Civil Liability Act 2002 Evidence Act 1995
Cases Cited:	ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 Luxton v Vines [1952] HCA 19 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Penrith Rugby League Club Ltd v Elliott [2009] NSWCA 247 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 Sakoua & Anor v Williams [2005]) NSWCA 405 Stojan No 9 v Kenway [2009] NSWCA 364
Category:	Principal judgment
Parties:	Biljana Jankovic v The Owners – Strata Plan 21897
Representation:	Counsel: Mark Thompson (Plaintiff) Simon Glascott (Defendant)   Solicitors: Carro and Associates (Plaintiff) McCulloch & Buggy (Defendant)
File Number(s):	2016/84976
Publication restriction:	None

Judgment

Introduction

Part A – Liability

The Plaintiff’s Case as Pleaded

The Plaintiff’s Case as Opened

The Plaintiff’s Case in Final Addresses

The Defendant’s Case

Facts Not Disputed

The Evidence

The Plaintiff

Zvjezdan Arcaba

Slavka Cupac

Boris Arcaba (Boris)

Elvis Tavares

The Plaintiff’s Submissions

The Defendant’s Submissions

General Principles re Liability

The CLA Provisions

Burden and Onus of Proof

Analysis

The Pleaded Claim

(a) Inspecting the subject flight of steps

(b) Illuminating the subject flight of steps

(c) Inspecting the state of illumination of the subject flight of steps

(d) Inspecting such of the lights and light fittings as illuminated the subject flight of steps

(e) Repairing such of the lights and light fittings as illuminated the subject flight of steps

(f) Replacing such of the light bulbs as illuminated the subject flight of steps

(g) Warning the plaintiff of the state of illumination of the stairwell

The Broader Claim of Breach

Contributory Negligence

Part B - DAMAGES

Past Treatment Expenses

Future Treatment Expenses

Past Domestic Assistance

Future Domestic Assistance

Summary of Assessment of Damages

ORDERS

Judgment

introduction

1. The plaintiff seeks compensation from the defendant following injuries sustained by her at premises owned by the defendant located at and known as Block 6, 142 Moore Street, Liverpool, in the state of New South Wales (“the Premises”).

2. It is alleged that, as a consequence of the inadequacy of the lighting at the Premises, the plaintiff stumbled in darkness and fell…