New South Wales v Broune - [2000] NSWCA 3

CITATION: STATE OF NEW SOUTH WALES v BROUNE & ANOR [2000] NSWCA 3

FILE NUMBER(S): CA 40331/98

HEARING DATE(S): 18 November 1999

JUDGMENT DATE:
18 February 2000

PARTIES :

STATE OF NEW SOUTH WALES v LYNDEN ANDREA BROUNE & ANOR

JUDGMENT OF: Mason P at 1; Giles JA at 75; Hodgson CJinEq at 76

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 8847/95

LOWER COURT
JUDICIAL OFFICER : Seery ADCJ

COUNSEL: Appellant: P R Sternberg
1st Respondent: P Menzies QC; R Royle
2nd Respondent: G Curtin

SOLICITORS: Appellant: Crown Solicitor's Office
1st Respondent: Packer & Austin
2nd Respondent: Tress Cocks & Maddox

CATCHWORDS: Negligence - occupier's liability - licensed premises - owner's control - unlit stairway - Damages - personal injuries - "cushion" award inappropriate - Costs - Bullock award

DECISION: Appeal upheld in part - short minutes to be filed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40331/98
DC 8847/95
MASON P
GILES JA
HODGSON CJ in Eq

Friday 18 February 2000

STATE OF NEW SOUTH WALES v
Lynden Andrea BROUNE & ANOR
The plaintiff attended the first session of a sewing course promoted by the Nepean Community College at the premises of Blaxland High School. She arrived in the evening when it was daylight and was directed up to a class upstairs, approached from the car park by two flights of concrete stairs. When the class finished it was dark. So too were the stairs. The plaintiff edged her way down them carrying her belongings, which included a sewing machine that she had to bring to the class. She thought she had reached to bottom step, but was mistaken. She fell and injured her back and leg.
In the District Court damages were recovered against the State as occupier of the school. The defence of contributory negligence was rejected. The plaintiff’s alternative claim against the College resulted in a verdict for the defendant and the State’s claim for contribution against the College was dismissed.
On appeal, HELD
1. The finding of negligence against the State should stand, having regard to the fact that more than one light was out on the stair way and the system for checking and maintenance was deficient. It was open to the trial judge to infer that the negligence caused the plaintiff’s injuries (Betts v Whittingslowe (1945) 71 CLR 637 at 649; Chappel v Hart (1999) 195 CLR 232 at 239, 247, 257, 273-4 applied).
2. The plaintiff was not guilty of contributory negligence.
3. The findings as to damages made by the trial judge should stand except for the award of damages for future economic loss. There was no evidence to support that award and this was not a proper case for a “cushion” award.
4. The appellant’s challenge to the Bullock costs order should be rejected because the plaintiff only joined the College after the State denied that the State was the occupier.
5. The appellant had standing to challenge the finding…

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.

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Details

Case: [2000] NSWCA 3
Decision Date: 18 February 2000

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a claim for damages for personal injuries brought by the respondent, Mr Broune, against the appellant, New South Wales. Mr Broune sustained injuries when he fell down an unlit stairway at licensed premises. The central dispute concerned whether the appellant, as the owner with control over the premises, owed a duty of care to Mr Broune, and if so, whether that duty had been breached.

The Court was required to determine whether the appellant was liable in negligence for the injuries sustained by Mr Broune. This involved assessing whether the appellant owed a duty of care to Mr Broune as an occupier of the premises, and if a duty was owed, whether the appellant had breached that duty by failing to ensure the stairway was adequately lit. The Court also considered the appropriate measure of damages, specifically whether a "cushion" award was appropriate, and the question of costs, including the possibility of a Bullock order.

The Court found that the appellant, by virtue of its control over the licensed premises, owed a duty of care to persons lawfully on the premises, including Mr Broune. The failure to provide adequate lighting for the stairway was held to be a breach of that duty. The Court also determined that the damages awarded to Mr Broune were excessive and that a "cushion" award was inappropriate in this instance. Consequently, the appeal was upheld in part, with the Court ordering that short minutes be filed to give effect to its decision regarding the damages and costs.

Orders

Orders of the court

Appeal upheld in part - short minutes to be filed

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.

CITATION:	STATE OF NEW SOUTH WALES v BROUNE & ANOR [2000] NSWCA 3
FILE NUMBER(S):	CA 40331/98
HEARING DATE(S):	18 November 1999
JUDGMENT DATE:	18 February 2000
PARTIES :	STATE OF NEW SOUTH WALES v LYNDEN ANDREA BROUNE & ANOR
JUDGMENT OF:	Mason P at 1; Giles JA at 75; Hodgson CJinEq at 76

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8847/95
LOWER COURT JUDICIAL OFFICER :	Seery ADCJ

COUNSEL:	Appellant: P R Sternberg 1st Respondent: P Menzies QC; R Royle 2nd Respondent: G Curtin
SOLICITORS:	Appellant: Crown Solicitor's Office 1st Respondent: Packer & Austin 2nd Respondent: Tress Cocks & Maddox
CATCHWORDS:	Negligence - occupier's liability - licensed premises - owner's control - unlit stairway - Damages - personal injuries - "cushion" award inappropriate - Costs - Bullock award
DECISION:	Appeal upheld in part - short minutes to be filed