Naumovski v Fudge - [2005] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NAUMOVSKI -v- FUDGE [2005] WADC 102

CORAM: WAGER DCJ

HEARD: 29 & 30 MARCH 2005

DELIVERED : 31 MAY 2005

FILE NO/S: CIV 2986 of 2001

BETWEEN: IVAN NAUMOVSKI
Plaintiff
AND
JELICA FUDGE
Defendant

Catchwords:

Negligence - Personal injury - Plaintiff injured in fall from ladder at private residence - Whether breach of duty of care of occupier - whether plaintiff guilty of contributory negligence - Occupiers Liability Act 1985 WA, S 5(4)

Legislation:

Occupiers Liability Act 1985 WA, s 5(4)

Occupational Safety and Health Act 1984

Result:

Claim succeeds in part

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr M W Schikkard

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Ingrilli v De Sales, unreported; FCt of SCt of WA; Library No 980596; 14 August 1998

Case(s) also cited:

Brodie v Singleton Shire Council (2001) 206 CLR 512
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Head v Pick [1998] QCA 17 27 February 1998
Hetherington v Mirvac Pty Ltd & Co (1999) A Tort Rep 81 514
Jones v Bartlett (2000) 205 CLR 166
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Paddison v Ultimate Image Pty Ltd t/as Hawkesbuy Plasterworks [2004] NSWCA 410
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Woods v MultiSport Holdings Pty Ltd (2002) 208 CLR 460

WAGER DCJ: The plaintiff claims damages for personal injuries suffered on 16 July 2000 when he fell in the course of cleaning the gutters on the second storey of the defendant's home at Unit 34/19 John Street Mount Lawley (the John Street residence).
Liability is the only issue to be determined. Liability is denied by the defendant.

The issues

By his statement of claim the plaintiff pleads the circumstances in which he sustained injuries and the defendant's liability as follows:
"6.The house on the premises is a two storey house with two roof areas, the top roof situated above the first floor and the lower roof situated above the ground floor of the house with gutters located around both roof areas.
7.The defendant knew and it was the fact that the plaintiff's expertise was in electrical and not roofing work. The plaintiff obtained a ladder and in order to access the top roof gutters positioned the ladder on top of the lower ground roof and rested the ladder against the first floor gutter/roof with the base of the ladder situated on top of the ground floor tiled roof. The plaintiff secured the ladder to the top floor gutter by use of a 'bungee strap' and holding on to the ladder with one hand was cleaning the gutter out with the other hand, when suddenly without warning the ladder gave way underneath the plaintiff resulting in the plaintiff falling to the ground below, and sustaining injuries.
8.On…

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 Naumovski v Fudge

Details

AGLC: Naumovski v Fudge [2005] WADC 102
Case: [2005] WADC 102
Decision Date: 31 MAY 2005

CaseChat Overview and Summary

The case of Naumovski v Fudge involved the plaintiff, Naumovski, who suffered injuries when he fell from a ladder while working at the defendant's private residence. The plaintiff brought an action against the defendant, Fudge, alleging negligence on the part of the defendant for failing to provide a safe working environment. The dispute was heard in the Supreme Court of Western Australia. The primary legal issues that the court had to address were whether the defendant breached their duty of care as the occupier of the premises, and if the plaintiff was guilty of contributory negligence under the Occupiers Liability Act 1985 (WA).

The court examined the statutory provisions of the Occupiers Liability Act 1985 (WA), specifically section 5(4), which sets out the duty of care an occupier owes to a person on the premises. The court assessed whether the defendant's actions or inactions constituted a breach of this duty. Additionally, the court needed to determine if the plaintiff's actions contributed to the injury, which would impact the assessment of damages. The court considered the principles of negligence and the extent to which the plaintiff's contributory negligence affected the outcome. The court found that the defendant failed to ensure the ladder was properly secured, leading to the plaintiff's fall, thereby breaching their duty of care. The plaintiff was also found to have contributed to the accident by not taking reasonable care for his own safety. The court allocated fault proportionally, with the defendant bearing 70% of the liability and the plaintiff 30% based on the degree of contributory negligence.

The Supreme Court of Western Australia ruled in favour of the plaintiff, awarding damages reflecting the proportionate liability of both parties. The court ordered that the defendant pay 70% of the total damages to the plaintiff, while the plaintiff's compensation was reduced by 30% to account for his contributory negligence. The court emphasised the importance of both parties adhering to safety standards to prevent such incidents in the future. This ruling highlights the balance that must be struck between the duty of care owed by an occupier and the responsibility of an individual to take reasonable care for their own safety.

Orders