Parker v Moore - [2006] QSC 415

SUPREME COURT OF QUEENSLAND

CITATION:

Parker v Moore [2006] QSC 415

PARTIES:

SHANE PATRICIA PARKER
(plaintiff)
v
MICHAEL MORRIS MOORE and LINDA MAY MOORE
(defendants)

FILE NO/S:

SC No 4 of 2001

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

6 December 2006

DELIVERED AT:

Cairns

HEARING DATE:

30, 31 August 2006

JUDGE:

Jones J

ORDER:

1. The plaintiff’s claim is dismissed
2. The plaintiff pay the defendants’ costs of and incidental to the claim to be assessed on a standard basis.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – landlord owes duty to the tenant not to let premises suffer defects which make premises unsafe – landlords inspected premises on two occasions – not aware of any defect in the premises – plaintiff stood on balustrade, fell and suffered an injury - plaintiff alleged balustrade was defective because it wobbled – whether defect affecting the plaintiff was a defect likely to be discovered by ordinary inspection

NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGES – landlord owed tenant a duty of care to take reasonable care that the tenant not suffer injury – plaintiff stood on balustrade in order to remove a curtain – plaintiff alleged balustrade wobbled and the plaintiff fell suffering injuries – whether landlord could be expected to foresee that the balustrade would be used in this way

Residential Tenancies Act 1994, s 103, s 106

Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267
Gray v Queensland Housing Commission [2004] QSC 276
Jones v Bartlett (2000) 205 CLR 166
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

COUNSEL:

M Pope for the plaintiff
M Grant-Taylor SC for the defendants

SOLICITORS:

Bruce K Gillan for the plaintiff
McInnes Wilson for the defendants

On or about Sunday, 6 September 1998 the plaintiff sustained injuries when she fell from a balustrade into a stairwell at the home which she and her partner were renting. She claims damages in respect of those injuries on the grounds that the fall was caused by the negligence and/or breach of contract and duty of the defendants, the owners of the house. The defendants deny that there was any negligence or breach of duty on their part.

Background facts

The house in question is mainly of timber construction. It was erected some time prior to 1943 because it is depicted in an aerial photograph taken in that year.[1] No doubt it had undergone repairs and alterations in the intervening period. Some evidence of this is the fact that louvre windows had been installed in the upper verandah area whilst sash type windows are found in other parts.
[1]Ex 1 – Liability documents at p 15

The defendants were the registered owners of the house which they purchased in the late 1980s or early 1990s. They had lived in the house “only for…

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 Parker v Moore

Details

AGLC: Parker v Moore [2006] QSC 415
Case: [2006] QSC 415
Decision Date: 6 December 2006

CaseChat Overview and Summary

The plaintiff, Parker, sued the defendants, Moore, who were her landlords, over an injury she sustained after falling from a balcony while attempting to remove a curtain. The dispute was heard in the Supreme Court of New South Wales. The central issue was whether the defendants breached their statutory obligation to maintain the premises in a safe condition and, if so, whether they could foresee the plaintiff’s injury as a result of the alleged defect. Specifically, the court needed to determine if the wobbling of the balcony rail, which the plaintiff claimed caused her to fall, constituted a defect that could have been discovered through ordinary inspection.

The court examined the obligations imposed on landlords by residential tenancy legislation. It considered the statutory requirement for landlords to ensure the premises are safe, which includes ensuring the absence of defects that could cause injury. The court analysed whether the wobbling of the balcony rail was a defect that an ordinary inspection would uncover and whether the defendants could foresee the risk of injury arising from its use in the manner the plaintiff described. The court found that the defendants had no knowledge of the defect and had conducted inspections without discovering it. Furthermore, the court concluded that the use of the balcony rail in the way the plaintiff described was not a foreseeable scenario, and therefore the defendants could not be expected to foresee the risk of injury from the alleged defect.

Consequently, the court dismissed the plaintiff's claim. The court found that the defendants did not breach their statutory duty to maintain the premises in a safe condition as the alleged defect was not one that could have been discovered through ordinary inspection, and the risk of injury was not foreseeable. The court also ordered that the plaintiff pay the defendants’ costs of and incidental to the claim, to be assessed on a standard basis.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed

2. The plaintiff pay the defendants’ costs of and incidental to the claim to be assessed on a standard basis.

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:	Parker v Moore [2006] QSC 415
PARTIES:	SHANE PATRICIA PARKER (plaintiff) v MICHAEL MORRIS MOORE and LINDA MAY MOORE (defendants)
FILE NO/S:	SC No 4 of 2001
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	6 December 2006
DELIVERED AT:	Cairns
HEARING DATE:	30, 31 August 2006
JUDGE:	Jones J
ORDER:	1. The plaintiff’s claim is dismissed 2. The plaintiff pay the defendants’ costs of and incidental to the claim to be assessed on a standard basis.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – landlord owes duty to the tenant not to let premises suffer defects which make premises unsafe – landlords inspected premises on two occasions – not aware of any defect in the premises – plaintiff stood on balustrade, fell and suffered an injury - plaintiff alleged balustrade was defective because it wobbled – whether defect affecting the plaintiff was a defect likely to be discovered by ordinary inspection NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGES – landlord owed tenant a duty of care to take reasonable care that the tenant not suffer injury – plaintiff stood on balustrade in order to remove a curtain – plaintiff alleged balustrade wobbled and the plaintiff fell suffering injuries – whether landlord could be expected to foresee that the balustrade would be used in this way Residential Tenancies Act 1994, s 103, s 106 Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 Gray v Queensland Housing Commission [2004] QSC 276 Jones v Bartlett (2000) 205 CLR 166 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
COUNSEL:	M Pope for the plaintiff M Grant-Taylor SC for the defendants
SOLICITORS:	Bruce K Gillan for the plaintiff McInnes Wilson for the defendants