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Manmi v Manmi

Manmi v Manmi

Case [2019] NSWDC 96 3 April 2019

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District Court

New South Wales

Medium Neutral Citation: Manmi v Manmi [2019] NSWDC 96
Hearing dates: 31 January 2019 - 1 February 2019; 15 March 2019
Date of orders: 03 April 2019
Decision date: 03 April 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Verdict and judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.
(3) The parties have liberty to apply within 14 days for a different costs order to that set out in (2) above.
(4) Exhibits to be returned in 28 days.

Catchwords: Torts – negligence – slip and fall – whether mat in bathroom was negligently placed or left by defendant – whether breach of duty of care – issue of causative link to plaintiff’s dizziness and neck injury – whether increased need for future commercial care established
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Curtis v Harden Shire Council [2014] NSWCA 314
Dillon v Hair [2014] NSWCA 80
Hodgson v Sydney Water Corporation [2016] NSWDC 361
Jackson v McDonald's Australia Ltd [2014] NSWCA 162
Jay v Baker [2018] NSWDC 270
Mason v Demasi [2009] NSWCA 227
Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Serrao v Cornelius (No 2) [2016] NSWCA 231
Smith v Alone [2017] NSWCA 287
Smith v Zhang [2012] NSWCA 142
Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182
Swain v Waverley Municipal Council (2005) 220 CLR 517
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Category: Principal judgment
Parties: Shwan Manmi (Plaintiff)
Rang Manmi (Defendant)
Representation:
Counsel:
R Brown (Plaintiff)
M Newton (Defendant)
Solicitors:
Law Partners Compensation Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2017/00067745

Judgment

These proceedings relate to a claim by the plaintiff, Mr Shwan Manmi, against his brother, Mr Rang Manmi, in negligence for damages for personal injuries alleged to have been suffered by the plaintiff in a fall on 10 August 2014 at a home owned by the defendant. The plaintiff asserts that he slipped on a bath mat that was placed on the floor in front of the hand basin in a bathroom in the house, fell backwards and struck his head and neck on the edge of the bath tub, causing him injuries.
Despite the extent of the injuries alleged in the pleading and particulars filed by the plaintiff, at trial the claim was limited to an alleged exacerbation of a soft tissue injury to the plaintiff's neck and severe symptoms of dizziness which it was alleged have occurred from the date of the accident to the present and were caused by the fall.
The…

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 Manmi v Manmi

Details

AGLC: Manmi v Manmi [2019] NSWDC 96
Case: [2019] NSWDC 96
Decision Date: 03 April 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Manmi, and the defendant, also Manmi, regarding a slip and fall incident that occurred in the bathroom of a shared residential premises. The plaintiff alleged that the defendant was negligent in placing or leaving a mat in the bathroom, leading to the plaintiff’s fall, which resulted in dizziness and a neck injury. The plaintiff sought damages for the injuries sustained. The court was tasked with determining whether the defendant’s actions constituted a breach of the duty of care owed to the plaintiff and, if so, whether this breach was the cause of the plaintiff’s injuries and the increased need for future commercial care.

The primary legal issues that the court needed to address were whether the defendant was negligent in leaving the mat in the bathroom, and if this negligence caused the plaintiff’s dizziness and neck injury. Additionally, the court had to consider whether the plaintiff had established a need for increased future commercial care due to the injuries sustained. The court examined the evidence presented, including the circumstances of the fall, the condition of the mat, and the medical evidence regarding the plaintiff’s injuries and future care needs.

In delivering the judgment, the court found that the defendant was not negligent in placing or leaving the mat in the bathroom. The court concluded that the evidence did not establish that the mat was improperly positioned or that its presence constituted a danger. Furthermore, the court determined that there was insufficient evidence to link the defendant's actions directly to the plaintiff's dizziness and neck injury. The court found that the plaintiff had not proven that the fall caused the injuries claimed, nor had the plaintiff demonstrated an increased need for future commercial care. Consequently, the court found in favour of the defendant.

The court ordered that the defendant was to receive a verdict and judgment in their favour. The plaintiff was directed to pay the defendant’s costs of the proceedings as agreed or assessed. The parties were granted liberty to apply within 14 days for a different costs order. Additionally, the court stipulated that the exhibits were to be returned within 28 days.

Orders

Orders of the court

(1) Verdict and judgment for the defendant.

(2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

(3) The parties have liberty to apply within 14 days for a different costs order to that set out in (2) above.

(4) Exhibits to be returned in 28 days.

Background

Background to the litigation

Full text does not contain this section.

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

Manmi v Manmi [2019] NSWDC 96

Cases Citing This Decision

No citing cases yet.

Cases Cited

Jay v Baker [2018] NSWDC 270
Citation 1

…r [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Mason v Demasi [2009] NSWCA 227 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015]…
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Citation 2

…mercial care established Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Curtis v Harden Shire Council [2014] NSWCA 314 Dillon v Hair [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd […
Smith v Alone [2017] NSWCA 287
Citation 3 (Para 198)

…er or not, for future paid commercial assistance, a need for that assistance arising from a breach of duty of care must be established: Smith v Alone [2017] NSWCA 287 at [73]-[77].…
Hodgson v Sydney Water Corporation [2016] NSWDC 361
Citation 4

…idge [2018] NSWCA 183 Curtis v Harden Shire Council [2014] NSWCA 314 Dillon v Hair [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Mason v Demasi [2009] NSWCA 227 Nepean Blue Mountains Local Health District v Starke…
Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231
Citation 5 (Para 182)

…to the plaintiff’s age and physical infirmities at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. The plaintiff had problems with his back and neck at the time and also had weakness in his legs due to his myopathy. Having regard to these ma…
Boateng v Dharamdas [2016] NSWCA 183
Citation 6 (Para 129)

…he decision of the Court of Appeal in Grills was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]–[29]. [563] Following these principles…
Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114
Citation 7

…d [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Mason v Demasi [2009] NSWCA 227 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 Serrao v Cornelius (No 2) [2016] NSWCA 231 Smith…
Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCCA 320
Citation 8

…5; (2012) 246 CLR 182 Swain v Waverley Municipal Council (2005) 220 CLR 517 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Category: Principal judgment Parties: Shwan Manmi (Plai…
Uniting Church in Australia Property Trust (NSW) V Miller; Miller v Lithgow City Council [2015] NSWCA 320
Citation 9

…Swain v Waverley Municipal Council (2005) 220 CLR 517 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Category: Principal judgment Parties: Shwan Manmi (Plaintiff) Rang Manmi…
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Citation 10

…CA 227 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 Serrao v Cornelius (No 2) [2016] NSWCA 231 Smith v Alone [2017] NSWCA 287 Smith v Zhang [2012] NSWCA 142 Strong v Woolwor…
Davis v Swift [2014] NSWCA 458
Citation 11 (Para 23)

…JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]–[29]. [563] Following these principles, in applying s 5R of the CLA, a court considering contributory negligence is required in determining w…
Curtis v Harden Shire Council [2014] NSWCA 314
Citation 12

…il Liability Act 2002 (NSW) Cases Cited: Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Curtis v Harden Shire Council [2014] NSWCA 314 Dillon v Hair [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Ma…
Jackson v McDonald's Australia Ltd [2014] NSWCA 162
Citation 13

…[2014] NSWCA 314 Dillon v Hair [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Mason v Demasi [2009] NSWCA 227 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Patrick Stevedores Operations (No…
Dillon v Hair [2014] NSWCA 80
Citation 14

…es Cited: Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Curtis v Harden Shire Council [2014] NSWCA 314 Dillon v Hair [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Mason v Demasi [2009] NSWCA 227…
Wallace v Kam [2013] HCA 19
Citation 15

…ncil (2005) 220 CLR 517 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Category: Principal judgment Parties: Shwan Manmi (Plaintiff) Rang Manmi (Defendant) Representation:…
Smith v Zhang [2012] NSWCA 142
Citation 16 (Para 182)

…the allegation of contributory negligence to have regard to the plaintiff’s age and physical infirmities at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. The plaintiff had problems with his back and neck at the time and also had weakness i…
Strong v Woolworths Ltd [2012] HCA 5
Citation 17

…Serrao v Cornelius (No 2) [2016] NSWCA 231 Smith v Alone [2017] NSWCA 287 Smith v Zhang [2012] NSWCA 142 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Swain v Waverley Municipal Council (2005) 220 CLR 517 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA…
Mason v Demasi [2009] NSWCA 227
Citation 18 (Para 36)

…Some caution must be exercised in relying on what appears in general practitioner medical notes for the reasons given by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] which has been followed in numerous later appellate cases. The plaintiff's first language is not English, having been born in Iraq. This adds…
Swain v Waverley Municipal Council [2005] HCA 4
Citation 19

…CA 287 Smith v Zhang [2012] NSWCA 142 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Swain v Waverley Municipal Council (2005) 220 CLR 517 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wilkinson v Law Court…
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Citation 20

…Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Category: Principal judgment Parties: Shwan Manmi (Plaintiff) Rang Manmi (Defendant) Representation: Counsel: R Brown (Plaintiff) M Newton (Defendant) Solicitors: La…
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Citation 21

…trict v Starkey [2016] NSWCA 114 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 Serrao v Cornelius (No 2) [2016] NSWCA 231 Smith v Alone [2017] NSWCA 287 Smith v Zhang [2012] NSWCA 142 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182…

Legislation Cited

Civil Liability Act 2002 (TAS)
1 mention (from Para 4)

Medium Neutral Citation:	Manmi v Manmi [2019] NSWDC 96
Hearing dates:	31 January 2019 - 1 February 2019; 15 March 2019
Date of orders:	03 April 2019
Decision date:	03 April 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Verdict and judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. (3) The parties have liberty to apply within 14 days for a different costs order to that set out in (2) above. (4) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – slip and fall – whether mat in bathroom was negligently placed or left by defendant – whether breach of duty of care – issue of causative link to plaintiff’s dizziness and neck injury – whether increased need for future commercial care established
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Curtis v Harden Shire Council [2014] NSWCA 314 Dillon v Hair [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Mason v Demasi [2009] NSWCA 227 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 Serrao v Cornelius (No 2) [2016] NSWCA 231 Smith v Alone [2017] NSWCA 287 Smith v Zhang [2012] NSWCA 142 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Swain v Waverley Municipal Council (2005) 220 CLR 517 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wilkinson v Law Courts Ltd [2001] NSWCA 196
Category:	Principal judgment
Parties:	Shwan Manmi (Plaintiff) Rang Manmi (Defendant)
Representation:	Counsel: R Brown (Plaintiff) M Newton (Defendant) Solicitors: Law Partners Compensation Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant)
File Number(s):	2017/00067745