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McKenzie v Day (No 2)

McKenzie v Day (No 2)

Case [2016] NSWDC 236 23 August 2016

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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

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…

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 McKenzie v Day (No 2)

Details

AGLC: McKenzie v Day (No 2) [2016] NSWDC 236
Case: [2016] NSWDC 236
Decision Date: 23 August 2016

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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Citations

AGLC Citation

McKenzie v Day (No 2) [2016] NSWDC 236

Most Recent Citation

McKenzie v Day (No 2) [2016] NSWDC 373

Cases citing this decision · 1 of 1 shown

McKenzie v Day (No 2)
[2016] NSWDC 373 Para 4

…My primary reasons for judgment have been uploaded onto Caselaw. They can be found at [2016] NSWDC 236. Unfortunately, it is necessary to do a little recitation of basic facts. The plaintiff was at the time that she fell aged 60 years. She was employed by the Clarence Valley Council Community Support Services as a…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Schultz v McCormack
[2015] NSWCA 330 Para 29

…tatement of the applicable law is contained in the judgment of McColl JA, with whom Macfarlane JA and Beech-Jones J concurred, in Schultz v McCormack [2015] NSWCA 330, where her Honour said this:…
White v Benjamin
[2015] NSWCA 75 Para 85

…d, in the course of argument, to the line of authority which includes Kallouf v Middis [2008] NSWCA 61. However, that was doubted in White v Benjamin [2015] NSWCA 75, although, in that case, there was ample evidence from the plaintiff’s subsequent work that she did have a residual capacity of the kind found by the…
Isabella Shop Fitout and Design Pty Ltd v Tan Republic Pty Ltd
[2014] NSWCA 192

…il 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] NS…
Berkeley Challenge Pty Ltd v Howarth
[2013] NSWCA 370 Para 148

…not only a need for paid commercial care, but also that gratuitous assistance to satisfy the need unavailable: Berkley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [148] (Tobias AJA, Basten and Meagher JJA agreeing).”…
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd
[2009] NSWCA 263 Para 48

…inciples”. Section 5B presupposes the existence of the law of negligence and operates against its background: RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263. Section 5B(1) sets out a number of necessary conditions which need to be satisfied before a defendant can be held liable for a failure to exercise reaso…
Blacktown City Council v Hocking
[2008] NSWCA 144 Para 62

…ographs in a case of the current type. The authorities were Angel v Hawkesbury City Council [2008] NSWCA 130 and Blacktown City Council v Hocking [2008] NSWCA 144. Those two cases were heard together and judgment in each case was delivered on the same day. The bench comprised Spigelman CJ and Beazley, Giles, Tobias…
Angel v Hawkesbury City Council
[2008] NSWCA 130 Para 62

…s, which comment upon the use that may be made of photographs in a case of the current type. The authorities were Angel v Hawkesbury City Council [2008] NSWCA 130 and Blacktown City Council v Hocking [2008] NSWCA 144. Those two cases were heard together and judgment in each case was delivered on the same day. The b…
Kallouf v Middis
[2008] NSWCA 61 Para 85

…I referred, in the course of argument, to the line of authority which includes Kallouf v Middis [2008] NSWCA 61. However, that was doubted in White v Benjamin [2015] NSWCA 75, although, in that case, there was ample evidence from the plaintiff’s subsequent work that she did have a residual capacity of the kind fou…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 50

…is no duty to prevent harm occurring to others or to ensure that harm does not occur. That can be found in the judgment of Gummow J in RTA v Dederer (2007) 234 CLR 330. Necessarily, even if a risk of harm may be foreseeable, it may be reasonable to do nothing in response to the perception of such a risk of harm. In…
Nominal Defendant v Kostic
[2007] NSWCA 14 Para 91

…$35,000 for future paid care. This claim is completely insupportable. It was not discussed in the oral evidence at all. In Nominal Defendant v Kostic [2007] NSWCA 14, Ipp JA, with whom Hodgson and Campbell JJA concurred, said at [75]:…
Sakoua v Williams
[2005] NSWCA 405 Para 58

…ed out to me was also cited with approval by Mason P in Francis v Lewis [2003] NSWCA 152 at [40] to [41] and is also referred to in Sakoua v Williams [2005] NSWCA 405 at [26]. I have already pointed out what was said in Stannus v Graham at some length. In the circumstances, applying the general principles required…
Vairy v Wyong Shire Council
[2005] HCA 62

…(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: Car…
Dovuro Pty Ltd v Wilkins
[2003] HCA 51 Para 50

…. Necessarily, even if a risk of harm may be foreseeable, it may be reasonable to do nothing in response to the perception of such a risk of harm. In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, McHugh J said at [38]:…
Francis v Lewis
[2003] NSWCA 152 Para 3

…974. Ordinance 70 was replaced by the Building Code of Australia on 1 January 1993. That legislative background can be found in Francis v Lewis [2003] NSWCA 152 at [25]. The evidence does not disclose when the defendant entered into possession of this house and/or became its owner. I can only infer such occupation…
Wilkinson v Law Courts Ltd
[2001] NSWCA 196 Para 32

…an ordinary, everyday risk. The “Joint Law Courts” subsequently became a defendant in a fall on steps. The decision is Wilkinson v Law Courts Ltd [2001] NSWCA 196. In that case, the plaintiff, on 30 May 1995, fell down the steps outside the Joint Law Courts Building in Sydney. He sustained a broken ankle. At the ti…
Graham v Stannus
[1995] HCATrans 19 Para 30

…However, it is worthwhile to consider some earlier cases. Perhaps the appropriate starting point is the decision of the Court of Appeal in Stannus v Graham (1994) Aust Tort Reports [81-293]. In that case, the plaintiff and her husband were renting premises owned by the defendant as a holiday flat. The plaintiff, who had f…
Watson v George
[1953] HCA 41

…ntial property has a duty to inspect the premises for the purpose of discovering unsuspected defects. Indeed, the decision in Watson v George (1953) 89 CLR 409 supports the view that no such duty existed in the present case. This decision predates Australian Safeway Stores v Zaluzna […] but was not referred to in th…
[1951] AC 850
[1951] AC 850 Para 51

…cautions against the risk it allegedly failed to undertake. In RTA v Dederer , Gummow J cited with approval at [61] the observation in Bolton v Stone [1951] AC 850 at [858] that:…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
1 mention (from Para 48)
Local Government Act 1919 (NSW)
1 mention (from Para 3)

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