DISTRICT COURT OF QUEENSLAND
CITATION: Kent v Body Corporate Christine Close [2002] QDC 344 PARTIES: ALEXANDRA KENT
Plaintiff
and
THE BODY CORPORATE FOR ‘CHRISTINE CLOSE’
COMMUNITY TITLES SCHEME 8291
Defendant
FILE NO/S: D675/1998 DIVISION: District Court of Queensland PROCEEDING: Claim ORIGINATING
COURT:District Court, Southport DELIVERED ON: 18 December 2002 DELIVERED AT: Southport HEARING DATE: 7 & 8 October 2002 JUDGE: Alan Wilson SC DCJ ORDER: Judgment for the plaintiff CATCHWORDS:
TORTS – NEGLIGENCE – PARTICULAR CASES – DUTY OF OCCUPIER – whether plaintiff suffered wrist fracture after fall upon paved driveway in defendant’s premises – whether the defendant had breached its duty of care
Cases considered: Australian Capital Territory v Badcock (2000) 169 ALR 585
Bartlett v Robinson (1981) 27 SASR 342
Brodie v Singleton Shire Council (2001) 75 ALJR 992
Gondoline v Hansard (2002) WASCA 214
Jaenke v Hinton (1995) QCA, 3 November 1995, 37/95
Miners v Town Inns (Pennant Hills) Pty Ltd (NSWSC) per
Findlay J, 17 December 1985
New South Wales v Broune (2000) NSWCA 3
Puflett v Proprietors of Strata Plan No. 121 (1987) 17
NSWLR 372COUNSEL: Mr A Collins for the plaintiff
Mr A S Kitchin for the defendantSOLICITORS: Gall Standfield Smith for the plaintiff
Carter Newell for the defendant
The plaintiff Alexandra Kent, born 1 September 1946 and aged 56 at the date of trial, claims damages for injuries allegedly suffered when she fell over in the driveway of the defendant’s premises at 44 Harley Street, Labrador on the night of 3 August 1997. The defendant not only denies that event occurred, it positively asserts the plaintiff in fact fell at her own home, in some entanglement with her dog1. The defendant also argued that, even if it failed to prove that proposition, the evidence it adduced in support of it damaged the plaintiff’s credit to such a degree that she must fail in the action. In the further alternative, it denied negligence.
The defendant’s premises at Labrador were comprised of two units owned by a Mr and Mrs Booth who were, at all material times, the only members of the body corporate. One of the units was rented by the plaintiff’s friend, Alice Boyle. The plaintiff’s case, largely corroborated by Ms Boyle, is that on the night of 3 August 1997 the plaintiff went to visit Ms Boyle and say goodbye to her, because she was moving to Sydney on the following day. The plaintiff parked her car in the street outside the premises, and walked up the driveway and went through a gate to Ms Boyle’s unit. After some coffee and conversation the plaintiff left but, while walking down the driveway, she fell in a depression in its paved surface, in darkness, and injured her right wrist. She then returned to Ms Boyle’s unit, and the latter telephoned another friend, Jenny, who then came and collected the plaintiff and took her to her own home. The following morning the plaintiff telephoned Ms Boyle and asked that she take her…
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- Case
- [2002] QDC 344
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty was breached. The plaintiff argued that the defendant, as the owner of the premises, had a duty to ensure the safety of the driveway, particularly given its use by pedestrians. The defendant contended that the plaintiff’s injury was due to her own negligence in not watching where she was walking. The court had to examine the circumstances of the fall, the condition of the driveway, and whether any defects or hazards existed that could have been reasonably foreseen and avoided by the defendant.
The court found that the defendant did owe a duty of care to the plaintiff as an invitee on the premises. The evidence showed that the driveway had a noticeable defect which could have been identified and rectified by the defendant. The court concluded that the defendant had failed to take reasonable steps to maintain the driveway in a safe condition, thereby breaching their duty of care. Consequently, the court held the defendant liable for the plaintiff’s injuries and awarded damages.
Orders
Orders of the court
Judgment for the plaintiff
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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