Ordukaya v Hicks

The appeal concerned a dispute arising from injuries sustained by the plaintiff, Ordukaya, while moving a refrigerator in residential premises owned by the defendant, Hicks. The plaintiff alleged negligence on the part of the defendant, claiming an unstable step caused the accident. The primary legal issues before the court were whether the defendant owed a duty of care, whether the risk of injury was foreseeable, and the admissibility of certain hearsay evidence.

The court was required to determine if the defendant had knowledge of, or reason to suspect, a defect in the step, which was crucial for establishing a foreseeable risk of injury in a negligence claim. Furthermore, the court had to consider the admissibility of a statement made by an unidentified person, which the plaintiff sought to rely on as evidence of the defendant's awareness of the step's instability. The court also examined the application of section 64 of the *Evidence Act 1995* (Cth) concerning the admissibility of hearsay evidence when the maker of the statement is unavailable to give evidence, and the court's discretion under section 135(a) of the same Act to exclude evidence if it is unfairly prejudicial.

The court reasoned that the unidentified statement, even if made, lacked relevant probative significance. It could not be interpreted as an admission by the defendant or as evidence that the defendant should have been aware of the specific risk that led to the plaintiff's injury. Regarding the admissibility of the defendant's statutory declaration, the court found that the trial judge was satisfied, based on medical evidence, that it was not reasonably practicable to call the defendant as a witness due to her frailty. The court also noted that the trial judge was alive to the potential prejudice arising from the inability to cross-examine the defendant and took steps to mitigate this by requiring the defendant's evidence to be supported by other evidence. The court concluded that the discretion to admit the hearsay evidence was not improperly exercised.

The appeal was dismissed, and the plaintiff was ordered to pay the costs of the appeal.