Meagher JA at [1]; Gleeson JA at [2]; White JA at [183].
Decision:
(1) Appeal allowed, in part, on damages and is otherwise dismissed.
(2) Set aside order 1 made by the District Court on 31 August 2018 and in place, order:
(a) Judgment for the plaintiff against the second defendant with damages to be assessed. (b) The plaintiff’s claim against the first defendant is dismissed. (c) The plaintiff to pay the first defendant’s costs of the proceedings. (d) The first cross-claim and the second cross-claim are each dismissed with no order as to costs.
(3) Remit the proceedings to the District Court for a rehearing on the assessment of damages.
(4) Order that the issue of damages be referred to mediation before any rehearing takes place on the assessment of damages in the District Court.
(5) Cross-appeal dismissed.
(6) The appellant (Mr Lloyd) pay 40 per cent of the costs of the first respondent (Mr Thornbury) in this Court, and to have a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of such costs if eligible.
(7) The appellant (Mr Lloyd) pay the costs of the second respondent (the Treuers) in this Court.
(8) Costs of the proceedings below as between Mr Thornbury and Mr Lloyd, including any application for a Bullock or Sanderson order, to abide the outcome of the rehearing on damages.
Catchwords:
TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury
TORTS – negligence – Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in identification of risk of harm – reasonable precautions to prevent risk of harm – whether landlord should have ensured hole was backfilled or fenced
APPEAL AND NEW TRIAL – where absence of finding of primary fact – whether substantial miscarriage justifying retrial – no entitlement to retrial where absent finding not determinative of breach
TORTS – negligence – factual causation – Civil Liability Act 2002 (NSW), s 5D – whether primary judge erred in finding causation made out
CIVIL PROCEDURE – Court of Appeal – notice of contention – new ground raised on appeal – where other party objects – whether new ground could possibly have been met at trial
TORTS – Negligence – contributory negligence and apportionment – Civil Liability Act 2002 (NSW), ss 5B, 5R and 5S – whether primary judge erred in finding tenant contributorily negligent – whether primary judge erred in assessing extent of tenant’s contribution – causal significance of tenant’s own negligence
DAMAGES – measure and remoteness of damages in actions for tort – economic loss – whether primary judge erred in assessment of past economic loss and residual earning capacity – significance to findings of future economic loss – Civil…
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 Lloyd v Thornbury
Sign in free to access the full text
Details
AGLC
Lloyd v Thornbury [2019] NSWCA 154
Case
[2019] NSWCA 154
Decision Date
CaseChat Overview and Summary
The appeal concerned a tenant, Mr. Lloyd, who suffered injury after falling into a hole in the rear yard of a property leased from Mr. Thornbury. The dispute centred on whether Mr. Thornbury, as landlord, owed a duty of care to Mr. Lloyd and whether that duty had been breached. The matter was heard in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine several legal issues. These included whether the primary judge had erred in identifying the risk of harm posed by the hole, and whether reasonable precautions, such as backfilling or fencing the hole, should have been taken by the landlord. The court also considered whether the primary judge had erred in finding that the landlord's alleged negligence had caused the tenant's injuries, as well as issues relating to contributory negligence and the apportionment of responsibility. Furthermore, the court examined the primary judge's assessment of both economic and non-economic damages, including past and future economic loss, residual earning capacity, and the degree of severity of non-economic loss, particularly in light of the tenant's pre-existing injuries.
The Court of Appeal allowed the appeal in part, finding that the primary judge had erred in the assessment of damages. While the court upheld the primary judge's findings regarding liability and causation against the second defendant, it dismissed the claim against the first defendant, Mr. Thornbury. The court reasoned that the primary judge's findings on the quantum of damages were not adequately supported by the evidence, particularly concerning the impact of pre-existing conditions and the assessment of future economic loss. Consequently, the proceedings were remitted to the District Court for a rehearing solely on the assessment of damages, with a direction for mediation to precede the rehearing. The cross-appeal was dismissed.
Orders
Orders of the court
(1) Appeal allowed, in part, on damages and is otherwise dismissed.
(2) Set aside order 1 made by the District Court on 31 August 2018 and in place, order:
(a) Judgment for the plaintiff against the second defendant with damages to be assessed.
(b) The plaintiff’s claim against the first defendant is dismissed.
(c) The plaintiff to pay the first defendant’s costs of the proceedings.
(d) The first cross-claim and the second cross-claim are each dismissed with no order as to costs.
(3) Remit the proceedings to the District Court for a rehearing on the assessment of damages.
(4) Order that the issue of damages be referred to mediation before any rehearing takes place on the assessment of damages in the District Court.
(5) Cross-appeal dismissed.
(6) The appellant (Mr Lloyd) pay 40 per cent of the costs of the first respondent (Mr Thornbury) in this Court, and to have a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of such costs if eligible.
(7) The appellant (Mr Lloyd) pay the costs of the second respondent (the Treuers) in this Court.
(8) Costs of the proceedings below as between Mr Thornbury and Mr Lloyd, including any application for a Bullock or Sanderson order, to abide the outcome of the rehearing on damages.