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McDonnell v Green

McDonnell v Green

Case [2002] QDC 300 21 November 2002

Duty of Care

Occupier’s Liability

Contribution and Indemnity

Costs

Tort Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

McDonnell v. Green & Ors. [2002] QDC 300

PARTIES:

MICHAEL McDONNELL  (Plaintiff)

And

GRAHAM MAXWELL GREEN                   (First Defendant)

And

HARBRAE PTY LTD T/AS RAY WHITE MOOLOOLABA  (Second Defendant/First Third Party)

And

AILEEN GALLON HARRINGTON      (Second Third Party)

FILE NO/S:

D264 of 2000

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

21 November 2002

DELIVERED AT:

Maroochydore

HEARING DATE:

12-14 November 2002

JUDGE:

Judge J.M. Robertson

ORDER:

1.   Judgment for both the defendants against the plaintiff.

2.   The first defendant’s claim for indemnity and contribution against the second defendant/first third party is dismissed.

3.   The first defendant to pay the second defendant/first third party’s costs of the third party proceedings to be assessed on the standard basis.

4.   The plaintiff to pay the second defendant’s costs of and incidental to the claim, including any reserved costs, to be assessed on the standard basis.

5.   The plaintiff to pay the first defendant’s costs of and incidental to the claim, including any reserved costs, and including the costs that the first defendant has been ordered to pay to the second defendant, third party, to be assessed on the standard basis.

CATCHWORDS:

OCCUPIER’S LIABILITY – Duty of landlord to entrants upon leased premises – scope and extent of duty of care owed by landlord to entrants – who is the “occupier”?

CONTRIBUTION AND INDEMNITY – Duty of care of landlord where property is managed by real estate agent

COSTS – Offer made by wholly successful defendants – r.361 UCPR
Cases cited:
Northern Sandblasting Pty Ltd v. Harris (1997) 188 CLR 313
Jones v. Bartlett (2000) 205 CLR 166
Watson v. George (1953) SASR 219
Voli v. Inglewood Shire Council (1963) 110 CLR 74
Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479
Wilkinson v. Law Courts Limited [2001] NSWCA 196
Sutherland Shire Council v. Heyman [1984-1985] 157 CLR 424
Clarke v. Banfield & Ors [1999] QDC 271 (unreported judgment of Judge Samios, 26.5.2000)
Le Lievre v. Gould [1893] 1 QB 491
Naomi Marble and Granite Pty Ltd v. FAI General Insurance Company Limited (No. 2) [1999] 1 Qd R 518
Calderbank v. Calderbank [1975] 3 WLR 586
Multicon Engineering Pty Ltd v. Federal Airports Corporation (1996) 138 ALR 318

Statutes cited:
Uniform Civil Procedure Rules, r.361

COUNSEL:

M.J.F. Burnett (for the Plaintiff)
T. Matthews (for the First Defendant)
B.F. Charrington (for the Second Defendant/First Third Party)

A.G. Harrington (Self-represented)

SOLICITORS:

Boyce Garrick (for the Plaintiff)
Quinlan Miller & Treston (for the First Defendant)

Carter Newell (for the Second Defendant/First Third Party)

The plaintiff claims damages for personal injuries.

On the 21^st May 1999 in the afternoon, the plaintiff slipped and fell and injured his shoulder on a driveway on a property situated at 25 Tarwarri Crescent, Mooloolaba (“the premises”) and owned by the first defendant (Mr Green) and occupied as a tenant by the second third party (Mrs Harrington). The plaintiff then lived next door to the premises, at 23 Tarwarri Crescent,…

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 McDonnell v Green

Details

AGLC: McDonnell v Green [2002] QDC 300
Case: [2002] QDC 300
Decision Date: 21 November 2002

CaseChat Overview and Summary

In the case of McDonnell v Green, the plaintiff sought to recover damages for injuries sustained when she fell in a stairwell at a property leased by the first defendant from the second defendant, the landlord. The plaintiff alleged that the second defendant, as the landlord, had a duty of care to ensure the premises were safe, which was breached, resulting in her injuries. The second defendant, in turn, sought indemnity and contribution from the first defendant, who managed the property through a real estate agent. The court was required to determine the extent of the landlord’s duty of care, whether the landlord was the "occupier" for the purposes of occupiers' liability, and whether the landlord was vicariously liable for the injuries caused by the real estate agent's negligence.

The court examined the principles of occupiers' liability and determined that the landlord was not the "occupier" for the purposes of occupiers' liability because the first defendant, as the tenant, was in control of the premises. The court held that the landlord's duty of care was limited to ensuring the structural integrity of the premises was maintained, which the landlord had fulfilled. The real estate agent's role in managing the property did not impose any additional duty of care on the landlord. Consequently, the landlord was not liable for the plaintiff's injuries, and the first defendant was not vicariously liable for the real estate agent's negligence. The court also considered the defendants' successful offers to settle under r.361 UCPR and ordered the plaintiff to pay the defendants' costs.

The court dismissed the first defendant's claim for indemnity and contribution against the second defendant. It ordered the first defendant to pay the second defendant's costs of the third-party proceedings. The plaintiff was ordered to pay the second defendant's costs of the claim, including any reserved costs, and the first defendant's costs of the claim, including the costs that the first defendant was ordered to pay to the second defendant. The court's decision emphasised the distinction between the roles of landlord and tenant in the context of occupiers' liability and the limited scope of the landlord's duty of care.

Orders

Orders of the court

1. Judgment for both the defendants against the plaintiff.

2. The first defendant’s claim for indemnity and contribution against the second defendant/first third party is dismissed.

3. The first defendant to pay the second defendant/first third party’s costs of the third party proceedings to be assessed on the standard basis.

4. The plaintiff to pay the second defendant’s costs of and incidental to the claim, including any reserved costs, to be assessed on the standard basis.

5. The plaintiff to pay the first defendant’s costs of and incidental to the claim, including any reserved costs, and including the costs that the first defendant has been ordered to pay to the second defendant, third party, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

McDonnell v Green [2002] QDC 300

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 11 of 11 shown

Wilkinson v Law Courts Ltd
[2001] NSWCA 196 Para 1

…with analogous facts, I note that Jones v. Bartlett has been applied so as to deny a plaintiff in New South Wales in Wilkinson v. Law Courts Limited [2001] NSWCA 196 (a plaintiff who was leaving the Law Courts building and who fell and injured himself on some external stairs).…
Jones v Bartlett
[2000] HCA 56 Para 1

…n negligence and duty of care of landlords to tenants and others are Northern Sandblasting Pty Ltd v. Harris (1997) 188 CLR 313 and Jones v. Bartlett (2000) 205 CLR 166 in which the earlier case was considered and the principles established more clearly defined. Neither of those cases involved injuries to entrants on…
Clarke v Banfield
[1999] QDC 271 Para 1

…Counsel have referred me to the case of Clarke v. Banfield & Ors [1999] QDC 271 (unreported judgment of Judge Samios, 26.5.2000). In that case the plaintiff tenant sued the defendant landlord for damages for negligence and/or breach of contract, and the defendants joined the real estate agent as a third party. In…
Northern Sandblasting Pty Ltd v Harris
[1997] HCA 39 Para 1

…The leading authorities on negligence and duty of care of landlords to tenants and others are Northern Sandblasting Pty Ltd v. Harris (1997) 188 CLR 313 and Jones v. Bartlett (2000) 205 CLR 166 in which the earlier case was considered and the principles established more clearly defined. Neither of those cases involve…
Multicon Engineering Pty Ltd v Federal Airports Corporation
[1997] NSWCA 214 Para 1

…Mr Charrington for the second defendant seeks costs on an indemnity basis as from the date of an offer to settle made on behalf of both defendants on the 17 th July 2002. The offer was to settle on an “all up” basis of $50,000 to the plaintiff. The express wording of r.361 UCPR seems to militate aga…
Australian Safeway Stores Pty Ltd v Zaluzna
[1987] HCA 7

…on v. George (1953) SASR 219 Voli v. Inglewood Shire Council (1963) 110 CLR 74 Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 Wilkinson v. Law Courts Limited [2001] NSWCA 196 Sutherland Shire Council v. Heyman [1984-1985] 157 CLR 424 Clarke v. Banfield & Ors [1999] QDC 271 (unreported judgment of Jud…
Sutherland Shire Council v Heyman
[1985] HCA 41 Para 1

…attempted to persuade me that there was the requisite proximity by reference to basic principles. In Sutherland Shire Council v. Heyman [1984-1985] 157 CLR 424 at 497, Deane J said:…
Watson v George
[1953] HCA 41 Para 1

…After quoting earlier with approval a passage in the judgment of Ligertwood J in Watson v. George (1953) SASR 219 (a case which defined the scope of this aspect of the duty in terms of contract), their Honours (at p220) translate that approach to tort by reference to the judgment of Windeyer J in Vo…
Voli v Inglewood Shire Council
[1963] HCA 15 Para 1

…s of contract), their Honours (at p220) translate that approach to tort by reference to the judgment of Windeyer J in Voli v. Inglewood Shire Council (1963) 110 CLR 74 at 74:…
[1893] 1 QB 491
[1893] 1 QB 491 Para 1

…rsons who as occupiers owe a duty of care to others, without resort to any authority to that effect. As Lord Esher MR noted in Le Lievre v. Gould [1893] 1 QB 491 at 497, in an oft quoted statement “a man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them”.…
[1975] 3 WLR 586
[1975] 3 WLR 586 Para 1

…n known) under r.361 UCPR. The judgment turns on other issues including an offer to settle known as a Calderbank letter: Calderbank v. Calderbank [1975] 3 WLR 586. The case did concern circumstances in which defendants had been entirely successful against the plaintiff. The relevant rule then was O.26 r.9 Supreme C…

Legislation cited in this decision · 1

Trade Practices Act 1974 (Cth)
1 mention (from Para 1)

CITATION:	McDonnell v. Green & Ors. [2002] QDC 300
PARTIES:	MICHAEL McDONNELL (Plaintiff) And GRAHAM MAXWELL GREEN (First Defendant) And HARBRAE PTY LTD T/AS RAY WHITE MOOLOOLABA (Second Defendant/First Third Party) And AILEEN GALLON HARRINGTON (Second Third Party)
FILE NO/S:	D264 of 2000
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Maroochydore
DELIVERED ON:	21 November 2002
DELIVERED AT:	Maroochydore
HEARING DATE:	12-14 November 2002
JUDGE:	Judge J.M. Robertson
ORDER:	1. Judgment for both the defendants against the plaintiff. 2. The first defendant’s claim for indemnity and contribution against the second defendant/first third party is dismissed. 3. The first defendant to pay the second defendant/first third party’s costs of the third party proceedings to be assessed on the standard basis. 4. The plaintiff to pay the second defendant’s costs of and incidental to the claim, including any reserved costs, to be assessed on the standard basis. 5. The plaintiff to pay the first defendant’s costs of and incidental to the claim, including any reserved costs, and including the costs that the first defendant has been ordered to pay to the second defendant, third party, to be assessed on the standard basis.
CATCHWORDS:	OCCUPIER’S LIABILITY – Duty of landlord to entrants upon leased premises – scope and extent of duty of care owed by landlord to entrants – who is the “occupier”? CONTRIBUTION AND INDEMNITY – Duty of care of landlord where property is managed by real estate agent COSTS – Offer made by wholly successful defendants – r.361 UCPR *Cases cited:* Northern Sandblasting Pty Ltd v. Harris (1997) 188 CLR 313 Jones v. Bartlett (2000) 205 CLR 166 Watson v. George (1953) SASR 219 Voli v. Inglewood Shire Council (1963) 110 CLR 74 Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 Wilkinson v. Law Courts Limited [2001] NSWCA 196 Sutherland Shire Council v. Heyman [1984-1985] 157 CLR 424 Clarke v. Banfield & Ors [1999] QDC 271 (unreported judgment of Judge Samios, 26.5.2000) Le Lievre v. Gould [1893] 1 QB 491 Naomi Marble and Granite Pty Ltd v. FAI General Insurance Company Limited (No. 2) [1999] 1 Qd R 518 Calderbank v. Calderbank [1975] 3 WLR 586 Multicon Engineering Pty Ltd v. Federal Airports Corporation (1996) 138 ALR 318 *Statutes cited:* Uniform Civil Procedure Rules, r.361
COUNSEL:	M.J.F. Burnett (for the Plaintiff) T. Matthews (for the First Defendant) B.F. Charrington (for the Second Defendant/First Third Party) A.G. Harrington (Self-represented)
SOLICITORS:	Boyce Garrick (for the Plaintiff) Quinlan Miller & Treston (for the First Defendant) Carter Newell (for the Second Defendant/First Third Party)