Negligence - Liability of occupier of premises for injury suffered by visitor - Plaintiff walked into unmarked glass panel of closed front door of a display home - Contributory negligence

Legislation:

Occupiers Liability Act 1985 WA

Result:

Plaintiff's claim allowed

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr M L Greenland

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Greenland Brooksby

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

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
David Jones Ltd v Bates [2001] NSWCA 233
Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183
Hackshaw v Shaw (1984) 155 CLR 614
Podrebersek v Australian Iron & Steel (1985) 59 ALR 529
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
City Elevator Services Pty Ltd v Burrow [2004] NSWCA 26
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Harris v Adams & Anor [2005] WADC 58
Jones v Bartlett (2000) 75 ALJR 1
Koehler v Cerebos (Australia) Ltd [2005] HCA 15
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305
Owners Strata Plan 30889 v Perrine [2002] NSWCA 324

MULLER DCJ: In this action the plaintiff, a 44 year old married man with three young children, is claiming damages from the defendant for injuries the plaintiff sustained when he walked into a closed glass door on leaving a display home owned by the defendant. The only issue in the trial was that of liability.

Circumstances of accident

At about 4.45 pm on 21 January 2001 the plaintiff, his wife and three young children went to a row of display homes in Poseidon Road in Heathridge. The plaintiff had purchased his own home in Wanneroo and he and his wife hoped to renovate the building and incorporate a mezzanine floor in the home. Knowing that one of the display homes in Poseidon Road had what they were looking for the couple decided to stop on their way to a relative's home and show the children the type of renovation they were hoping to incorporate in their own home.
The plaintiff, who had driven the family car on the afternoon in question, recalled parking his vehicle in a parking area adjacent to the row of display homes. His wife and children got out of the vehicle and went ahead of him to begin looking at the houses. Following his wife and children the plaintiff walked up the driveway and along the paved footpath to a display home owned by the defendant. On his way to the front entrance the…

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 Perrozzi v Homestyle Pty Ltd

Details

AGLC: Perrozzi v Homestyle Pty Ltd [2005] WADC 145
Case: [2005] WADC 145
Decision Date: 3 AUGUST 2005

CaseChat Overview and Summary

The matter involved a plaintiff who suffered injury when they walked into an unmarked glass panel of a closed front door of a display home operated by the defendant. The plaintiff sought damages for the injuries sustained. The court had to determine whether the defendant was negligent in the maintenance and display of the premises, and if so, whether the plaintiff's own actions contributed to the incident. The central issue was whether the defendant, as the occupier of the premises, owed a duty of care to the plaintiff, and if the plaintiff's own negligence contributed to the incident.

The court examined the duty of care owed by the defendant as the occupier of the premises. It considered whether the glass panel was reasonably conspicuous and whether the defendant took sufficient steps to warn visitors of the potential danger. The court also assessed the extent to which the plaintiff's own actions contributed to the injury. It concluded that the defendant was negligent in failing to properly mark the glass panel, which was not reasonably conspicuous. However, the court found that the plaintiff's own negligence also contributed to the incident. As a result, the court apportioned liability between the parties based on their respective contributions to the injury.

The court held that the defendant was liable for negligence, but the plaintiff's contributory negligence reduced the damages recoverable. The court awarded damages to the plaintiff, but reduced the amount by the percentage of the plaintiff's contributory negligence. The final orders reflected the court's determination of liability and the apportionment of damages between the parties. The defendant was ordered to pay damages to the plaintiff, but the amount was reduced in accordance with the plaintiff's contributory negligence.

Orders