O'Rourke v Johnston

CITATION:	O'Rourke v Johnston [2009] NSWDC 317
HEARING DATE(S):	6, 7, 8, 9 and 12 October 2009
JUDGMENT DATE:	28 October 2009
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the defendants 2. The plaintiff is to pay the defendants’ costs 3. Judgment for the cross-defendants 4. The cross-claimants are to pay the costs of the respective cross-defendants 5. Leave to apply in relation to costs orders, within 7 days
CATCHWORDS:	TORTS - claim by a tenant against his landlords and their managing agent for injuries received on the rented premises - whether a duty of care arose - whether any duty of care was breached - causation - contributory negligence - DAMAGES - non-economic loss - past and future medical expenses - economic loss - domestic care and assistance - other costs and expenses
LEGISLATION CITED:	Civil Liability Act 2002 Residential Tenancies Act 1987
CASES CITED:	Erect Safe Scaffolding (Australia) Pty Limited v Sutton [2008] NSWCA 114 Lever v Goldsby [1964-5] NSWR 1833 Northern Sandblasting Pty Ltd v Harris [1997} HCA 39; (1997) 188 CLR 313 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19
PARTIES:	Patrick James O’Rourke (Plaintiff) Craig Johnston (First Defendant) Melodie Vesna Johnston (Second Defendant) Dowling Real Estate (Wallsend) Pty Ltd (Third Defendant)
FILE NUMBER(S):	2986/08
COUNSEL:	Mr G Walsh (Plaintiff) Mr J Stewart (First and Second Defendants) Mr N Chen (Third Defendant)
SOLICITORS:	CMC Lawyers (Plaintiff) HWL Ebsworths (First and Second Defendants) Torquil Murray (Third Defendant)

JUDGMENT
The proceedings and the issues

1. The plaintiff claims damages in respect of injuries received on 13 August 2007 when he fell one night from a raised patio at premises in which he was living as a tenant with his wife and daughter. The first and second defendants were the owners of the premises and the plaintiff’s landlords. The third defendant company was their managing agent.

2. The plaintiff contends that his fall occurred under circumstances in which there was complete darkness. It was alleged that an overhead fluorescent light that had previously illuminated the unfenced patio at night had ceased to function, thus creating a hazard and a danger, with a foreseeable risk of the plaintiff, as tenant, falling from the patio at night.

3. The plaintiff sued in contract, in tort and for breach of statutory duty. The claim for breach of statutory duty was not pressed. Nor did the plaintiff maintain his case that the landlords should have erected a balustrade around the patio, or that the managing agent should have recommended that they do so before letting the premises. Because the patio was less than one metre high, there was no obligation to fence it, either by way of a handrail, a balustrade or otherwise. At the point of the plaintiff’s fall, the patio was in fact only some 69 cm high. The plaintiff’s case, as finally pressed, was that his fall was caused by the failure of the…