Payton v Van Der Wielen - [1999] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PAYTON -v- VAN DER WIELEN & ANOR [1999] WADC 29

CORAM: MACKNAY DCJ

HEARD: 24, 25 MARCH 1999

DELIVERED : 10 AUGUST 1999

FILE NO/S: CIV 1167 of 1996

BETWEEN: ALAN ROBERT PAYTON
Plaintiff
AND
JOHN VAN DER WIELEN
KYLIE ELIZABETH VAN DER WIELEN
Defendants

Catchwords:

Negligence - Dangerous premises - Plaintiff injured by fall at night in front garden of private residence - Occupiers Liability Act 1985 WA ss4 and 5 - Whether breach of duty of care of occupier - Whether plaintiff guilty of contributory negligence - Turns on own facts

Damages - Assessment - Personal injury - Plaintiff fisherman then aged 37 years - Fracture to left leg - Plaintiff left with 20 per cent loss of function below left knee - General damages $35,000 - Past and future loss of economic capacity $118,897

Legislation:

Occupiers Liability Act 1985 WA

Result:

Claim succeeds in part

Representation:

Counsel:

Plaintiff: Mr K J Bonomelli
Defendants: Mr J R Criddle

Solicitors:

Plaintiff: Anthony Torre & Monaco
Defendants: J R Criddle

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

Bartlett v Robinson (1981) 27 SASR 342
Jaenke & Anor v Hinton (1995) A Tort Rep 81-368
Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208
Stannus v Graham (1994) A Tort Rep 81-293

Case(s) also cited:

Nil

MACKNAY DCJ:

Introduction

On 29 April 1991 the plaintiff, who was then aged 37 years, having been born on 7 January 1954, suffered a serious leg injury when he fell whilst walking through the front garden of a house at premises owned by the defendants at 4 Sinian Crescent, Willetton.
The plaintiff alleges in his statement of claim, and the defendants admit in their defence, that pursuant to the Occupiers Liability Act 1985 (WA) ("the Act") the defendants were the occupiers of the premises.
The plaintiff also alleges that his fall resulted from a breach of the duty of care owed to him by the defendants pursuant to the Act.
The defendants deny any breach of duty, say that the plaintiff voluntarily consented to accept any risk and to waive any claim in respect of any injury that might have been occasioned to him by reason of the state of the front garden, and say further and in the alternative that if the plaintiff fell as alleged, that resulted from his own negligence.
Damages are claimed by the plaintiff.
Accident
The defendants had tenants in the house, but there is no plea as to that, or that that fact in any way altered the position, either legally or factually, and hence in my view that is ultimately without general significance, given the pleadings and the defendants' admission, and the manner in which the trial was run.
The tenants were Mr and Mrs Hookham, and they advertised a bed for sale in the Sunday Times, with their telephone number.
On 29 April 1991, the day of the accident, and in the evening,…

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 Payton v Van Der Wielen

Details

AGLC: Payton v Van Der Wielen [1999] WADC 29
Case: [1999] WADC 29
Decision Date: 10 AUGUST 1999

CaseChat Overview and Summary

The case of Payton v Van Der Wielen involved the plaintiff, a 37-year-old fisherman, who suffered a fractured left leg after falling in the front garden of the defendants' private residence. The plaintiff claimed the defendants were negligent in maintaining the premises and sought damages for the injury. The primary legal issues before the court were whether the defendants breached their duty of care as occupiers of the land, and whether the plaintiff was guilty of contributory negligence. The court also needed to determine the appropriate assessment of damages for the plaintiff's injury, which resulted in a 20% loss of function below the left knee.

The court examined the relevant statutory provisions under the Occupiers Liability Act 1985 (WA) sections 4 and 5, which outline the duties of care owed by occupiers to lawful visitors. The plaintiff argued that the defendants failed to provide adequate lighting in the garden, leading to the fall. The defendants contended that the injury resulted from the plaintiff's own carelessness. The court considered the facts of the case and concluded that the defendants did breach their duty of care by not ensuring the garden was reasonably safe for visitors, particularly at night. Regarding contributory negligence, the court found the plaintiff not to be significantly at fault for the accident.

The court awarded the plaintiff $35,000 in general damages and $118,897 for past and future loss of economic capacity. The total damages awarded reflected the specific circumstances of the plaintiff's injury and its impact on his ability to work as a fisherman. The court's decision underscored the importance of occupiers taking reasonable steps to maintain safe premises for visitors, particularly in areas accessible at night.

Orders