McKenzie v Day (No 2)

Case [2016] NSWDC 236


District Court


New South Wales

Medium Neutral Citation: McKenzie v Day (No 2) [2016] NSWDC 236
Hearing dates:15 - 19 August 2016
Date of orders: 23 August 2016
Decision date: 23 August 2016
Jurisdiction:Civil
Before: Neilson DCJ
Decision:

Verdict and judgment for the defendant against the plaintiff

Catchwords: TORTS – Negligence – Action for damages for personal injury – Plaintiff visits home of 92 year-old defendant as a support worker in the course of her employment – Although plaintiff had visited about 50 times over a period of years, plaintiff had not previously gone beyond the backdoor – On this occasion, defendant asked plaintiff to bring in washing – Plaintiff went through backdoor and onto back verandah and noticed, twice, steps leading from back verandah to backyard – A wall-fixed clothesline above the steps – Sheets were hung on this line – Plaintiff approaches close to sheets to feel if they are dry – Plaintiff missteps and falls down two steps and breaks both ankles – Although a number of allegations were made, plaintiff’s case ultimately that she was distracted by the sheets hanging on the clothesline and misjudged her step, causing her to fall – Plaintiff did not look to see where she was placing her step – Alleged that defendant ought to have warned plaintiff of danger of being distracted – Whether defendant was negligent – Whether plaintiff exercised reasonable case for her own safety – Whether defendant ought to have called her son who was a daily visitor to defendant’s house – What use can be made of photographic evidence
Legislation Cited: Civil Liability Act 2002
Local Government Act 1919
Cases Cited: Angel v Hawkesbury City Council [2008] NSWCA 130
Blacktown City Council v Hocking [2008] NSWCA 144
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 192
Francis v Lewis [2003] NSWCA 152
Kallouf v Middis [2008] NSWCA 61
Nominal Defendant v Kostic [2007] NSWCA 14
RTA v Dederer (2007) 234 CLR 330
RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
Schultz v McCormack [2015] NSWCA 330
Stannus v Graham (1994) Aust Tort Reports [81-293]
Wilkinson v Law Courts Ltd [2001] NSWCA 196
White v Benjamin [2015] NSWCA 75
Vairy v Wyong Shire Council (2005) 223 CLR 422
Category:Principal judgment
Parties: Lesley McKenzie (Plaintiff)
Lucy Day (Defendant)
Representation:

Counsel:
Mr F Curran (Plaintiff)
Mr J Guihot (Defendant)

  Solicitors:
Carroll & O’Dea (Plaintiff)
Moray & Agnew (Defendant)
File Number(s):2015/103378
Publication restriction:No

Judgment

  1. HIS HONOUR: The plaintiff, Mrs Lesley McKenzie, brings an action for damages for personal injury in the tort of negligence. There is no dispute that, on 15 April 2013, the plaintiff sustained personal injuries when she fell at the defendant’s residential premises at 289 Bent Street, South Grafton. The plaintiff, who was then aged 60 years, was employed by the Clarence Valley Council Community Support Services as a support worker on a permanent, part-time basis. The plaintiff’s employer provided to…

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Details
AGLC
McKenzie v Day (No 2) [2016] NSWDC 236
Case
[2016] NSWDC 236
Decision Date

CaseChat Overview and Summary

In the matter of McKenzie v Day (No 2), the plaintiff, who was a support worker employed to visit the home of the 92-year-old defendant, sought damages for personal injuries sustained in a fall on the defendant's property. The plaintiff, who had visited the defendant's home approximately 50 times, fell down two steps on the back verandah while attempting to feel if sheets hanging on a clothesline were dry. The plaintiff argued that she was distracted by the sheets and, as a result, misjudged her step, leading to the fall and subsequent injuries.

The court was required to determine whether the defendant was negligent in failing to warn the plaintiff of the potential distraction caused by the sheets on the clothesline. It also had to consider whether the plaintiff exercised reasonable care for her own safety and if the defendant should have called the plaintiff's son, who was a daily visitor to the defendant's house, to assist her with bringing in the washing. Additionally, the court needed to assess the admissibility and relevance of photographic evidence presented by the parties.

The court found that the plaintiff's claim of distraction by the sheets was not sufficiently supported by the evidence. It determined that the plaintiff had not exercised reasonable care for her own safety, as she did not look where she was placing her step. The court held that the defendant had no obligation to call the plaintiff's son for assistance and that the photographic evidence did not assist in determining the cause of the fall. Consequently, the court found that the defendant was not negligent and dismissed the plaintiff's claim. The court entered a verdict and judgment in favour of the defendant.

Orders

Orders of the court

Verdict and judgment for the defendant against 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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