Kent v Body Corporate Christine Close

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 372
COUNSEL:	Mr A Collins for the plaintiff Mr A S Kitchin for the defendant
SOLICITORS:	Gall Standfield Smith for the plaintiff Carter Newell for the defendant

1. 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.

2. 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…