Legal Research
Cases
Nikolich v Webb

Nikolich v Webb

Case [2020] WASCA 169 21 October 2020

Type to search within this case.

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NIKOLICH -v- WEBB [2020] WASCA 169
CORAM:   MURPHY JA
BEECH JA
VAUGHAN JA

HEARD:   14 SEPTEMBER 2020
DELIVERED          :   21 OCTOBER 2020
FILE NO/S:   CACV 60 of 2019
BETWEEN:   AMANDA SUZY NIKOLICH
Appellant
AND
MATTHEW DOUGLAS WEBB
First Respondent
KAREN LYNETTE SOMERS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   QUAIL DCJ
Citation: NIKOLICH -v- WEBB [2019] WADC 58
File Number            :   CIV 97 of 2017

Catchwords:

Statutory construction - Civil Liability Act 2002 (WA) s 5O - Whether operation of s 5O limited to defence of volenti non fit injuria

Torts - Negligence - Duty of care - Duty to warn - Whether obvious risk - Turns on own facts

Torts - Negligence - Short‑stay rental property - Slip in bathroom - Liability of owner - Whether reasonable precautions taken - Turns on own facts

Legislation:

Civil Liability Act 2002 (NSW), s 5H
Civil Liability Act 2002 (WA), s 5B, s 5E, s 5F, s 5H, s 5M, s 5N, s 5O
Occupiers Liability Act 1985 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	G M G McIntyre SC & J R Brooksby
First Respondent	:	J R B Ley SC
Second Respondent	:	J R B Ley SC

Solicitors:

Appellant	:	Percy Kakulas Gleeson
First Respondent	:	Greenland Legal Pty Ltd
Second Respondent	:	Greenland Legal Pty Ltd

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

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Angel v Hawkesbury City Council [2008] NSWCA 130
Bruce v Apex Software Pty Ltd [2018] NSWCA 330
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Carey v Lake Macquarie City Council [2007] NSWCA 4
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128
Council of the City of Sydney v Bishop [2019] NSWCA 157
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Gors v Tomlinson [2020] WASCA 164
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81‑952
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308; (2018) 99 NSWLR 98
Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205
Liverpool Catholic Club v Moor [2014] NSWCA 394
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Nikolich v Webb [2019] WADC 58
Phyllis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Schultz v McCormack [2015] NSWCA 330
Singh v Lynch [2020] NSWCA 152

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 [2020] WASCA 169
Case: [2020] WASCA 169
Decision Date: 21 OCTOBER 2020

CaseChat Overview and Summary

In the matter of Nikolich v Webb, the plaintiff, Ms Nikolich, sought damages from the defendant, Mr Webb, for injuries sustained from a slip in a bathroom of a short-stay rental property owned by Mr Webb. The dispute centred on whether Mr Webb, as the property owner, owed a duty of care to Ms Nikolich, and if so, whether he breached this duty by failing to warn her of the slippery condition. The case was heard in the Supreme Court of Western Australia.

The primary legal issue was whether section 5O of the Civil Liability Act 2002 (WA) applied to limit the defence of volenti non fit injuria. Additionally, the court had to determine whether Mr Webb owed Ms Nikolich a duty of care, and if so, whether this duty included a requirement to warn her of the obvious risk of slipping in the bathroom. The court also needed to assess whether Mr Webb had taken reasonable precautions given the circumstances.

The Supreme Court of Western Australia held that section 5O of the Civil Liability Act did not limit the application of the defence of volenti non fit injuria. The court emphasised that the defence turns on the specific facts of each case. The court further found that Mr Webb owed Ms Nikolich a duty of care, which included a duty to warn her of the obvious risk, as it was not entirely obvious to a reasonable person. The court determined that Mr Webb had not taken reasonable precautions by failing to warn Ms Nikolich of the slippery condition.

The court ordered that Mr Webb was liable for Ms Nikolich’s injuries and awarded her damages. The specific amount of damages was to be determined in a subsequent proceeding.

Orders