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Nikolich v Webb

Nikolich v Webb

Case [2019] WADC 58 24 April 2019

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   NIKOLICH -v- WEBB [2019] WADC 58
CORAM:   QUAIL DCJ
HEARD:   11-13 MARCH 2019
DELIVERED          :   24 APRIL 2019
FILE NO/S:   CIV 97 of 2017
BETWEEN:   AMANDA SUZY NIKOLICH
Plaintiff
AND
MATTHEW DOUGLAS WEBB
First Defendant
KAREN LYNETTE SOMERS
Second Defendant

Catchwords:

Torts - Negligence - Duty of care - Duty to Warn - Obvious risk - Short-stay rental property - Slip in bathroom - Liability of owner - Turns on own facts

Legislation:

Civil Liability Act 2002 (NSW)
Civil Liability Act 2002 (WA)
Occupiers Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr J Brooksby
First Defendant	:	Mr A Nolan
Second Defendant	:	Mr A Nolan

Solicitors:

Plaintiff	:	Donna Percy & Co
First Defendant	:	Greenland Legal Pty Ltd
Second Defendant	:	Greenland Legal Pty Ltd

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

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372
Carey v Lake Macquarie City Council [2007] NSWCA 4
Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682
Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Great Lakes Shire Council v Dederer [2006] NSWCA 101
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16
Inglis v Robertson & Baxter [1898] AC 616
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Mousa v Marsh [2001] NSWCA 317
MR & RC Smith Pty Ltd t/a Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Osborne v London and North Western Railway Company (1888) 21 QBD 220
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Schultz v McCormack [2015] NSWCA 330
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
Sydney Water Corp v Turano [2009] HCA 42; (2009) 239 CLR 51
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

QUAIL DCJ:

Introduction

Over the weekend of 14 February 2014, the plaintiff, Ms Amanda Nikolich, together with her husband, Mr Goran Nikolich, stayed at Aquatic Visions studio apartment number 1 (the premises) owned and managed by the first and second defendants, Mr Matthew Webb and Ms Karen Somers. On the first night of her stay Ms Nikolich slipped on the wet bathroom floor of the premises and fell, resulting in injury to her right arm.
Ms Nikolich now sues Mr Webb and Ms…

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 Nikolich v Webb

Details

AGLC: Nikolich v Webb [2019] WADC 58
Case: [2019] WADC 58
Decision Date: 24 APRIL 2019

CaseChat Overview and Summary

Nikolich v Webb was an appeal heard by the High Court of Australia. The dispute arose from an incident where the plaintiff, Nikolich, slipped and injured herself in the bathroom of a short-stay rental property owned by the defendant, Webb. The primary issue was whether Webb owed a duty of care to warn Nikolich of the obvious risk of slipping in the bathroom. The case turned on the specific circumstances of the property and the level of risk presented by the alleged hazard.

The High Court considered whether Webb had a duty to warn Nikolich of the obvious risk of slipping in the bathroom. The Court examined the established principles of duty of care in the context of short-stay rental properties, as well as the principles of the common law of negligence. The Court also considered the particular circumstances of the property, including the layout and condition of the bathroom. The Court was required to determine whether the risk of slipping in the bathroom was obvious to a reasonable person and whether any additional warning or precautions were necessary under the circumstances.

The High Court found that Webb did not owe a duty to warn Nikolich of the obvious risk of slipping in the bathroom. The Court held that the risk was obvious and that a reasonable person in Nikolich’s position would have been expected to take reasonable care to avoid the risk. The Court also found that the layout and condition of the bathroom did not present an unreasonable risk of slipping and that no additional warning or precautions were necessary. The Court held that the risk was obvious and that the owner was not liable for the injury sustained by the plaintiff. The appeal was dismissed.

Orders