Ryu v Karadjian - [2006] NSWCA 144

NEW SOUTH WALES COURT OF APPEAL

CITATION: RYU v KARADJIAN [2006] NSWCA 144

FILE NUMBER(S):
40699/2004

HEARING DATE(S): 28/04/2006

DECISION DATE: 05/06/2006

PARTIES:
Appellant – Tai Ak Ryu
Respondent – Virginia Karadjian

JUDGMENT OF: Giles JA Tobias JA Bryson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 788/03

LOWER COURT JUDICIAL OFFICER: Acting Judge Murray

COUNSEL:
Appellant – Mr S. Dixon
Respondent – Not represented

SOLICITORS:
Appellant – Tim Young & Associates
Respondent – Not represented

CATCHWORDS:
NEGLIGENCE - Occupiers Liability - the plaintiff, an experienced tiler, accompanied a tiler whom defendant had asked to attend at her house to give quotation for tiling work - defendant as owner-builder was carrying out building work, renovations, alterations and additions to the house, the work was incomplete and the areas to be tiled had bare concrete surface of balcony with two apertures left open for later installation of glass-tile skylights: apertures covered by gyprock held down by timber - no warning sign or other indication of aperture under gyprock - plaintiff stepped on gyprock and fell through to garage floor, suffering injuries - District Court found no breach of duty of care - on appeal held by majority, that there was a breach of duty in not giving a warning that the gyprock covered a substantial aperture - appeal allowed and damages awarded.

LEGISLATION CITED:
Bankruptcy Act 1966 (Cth) s 82(2)
Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5G & 5R

DECISION:
1. Appeal allowed
2. Set aside the verdict and judgment of Acting Judge Murray dated 13 August 2004 in favour of the respondent and in lieu thereof enter a verdict and judgment for the appellant in the sum of $163,696
3. The respondent to pay the appellant’s costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act, 1951 if otherwise qualified

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40699/2004
GILES JA
TOBIAS JA
BRYSON JA
MONDAY 5 JUNE 2006

TAI AK RYU v VIRGINIA KARADJIAN

Judgment

GILES JA: I agree with Tobias JA.

TOBIAS JA: In this matter I have had the benefit of reading the draft judgment of Bryson JA. His Honour has set out the relevant facts which I will not repeat. Notwithstanding the shortcomings in the ex tempore reasons of the primary judge, Bryson JA has concluded that his Honour’s findings and conclusions were sufficient to enable him to dispose of the appeal by proposing that it be dismissed. With respect, I take a different view.

The gravamen of Bryson JA’s reasoning, as explained in [35] to [39] of his judgment, appears to be as follows. The essential issue was what caused the appellant to walk on the gyprock rather than walking on the concrete surface of the balcony when conducting his inspection of the surface for tiling. The appellant explained that it was common for gyprock sheets to be left…

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 Ryu v Karadjian

Details

AGLC: Ryu v Karadjian [2006] NSWCA 144
Case: [2006] NSWCA 144
Decision Date: 5 June 2006

CaseChat Overview and Summary

The appellant, an experienced tiler, suffered injuries when he fell through an aperture in a balcony floor at the respondent's property. The respondent, an owner-builder, was undertaking renovations at the time. The appellant had accompanied another tiler to the property to provide a quotation for tiling work. The balcony area to be tiled had a bare concrete surface with two open apertures, which were covered by gyprock held down by timber. There were no warning signs or other indications of the apertures. The appellant stepped on the gyprock covering one of the apertures and fell to the garage floor below.

The primary legal issue before the Court of Appeal was whether the respondent breached her duty of care to the appellant, an invitee on her property. Specifically, the court had to determine if the respondent failed to take reasonable steps to warn the appellant of the concealed danger presented by the gyprock covering the apertures.

By majority, the Court of Appeal found that the respondent had breached her duty of care. The court reasoned that the respondent, as the owner-builder undertaking renovations, was aware of the incomplete state of the property and the presence of the apertures. The covering of the apertures with gyprock, without any warning or other indication of the underlying hazard, created a trap for an unsuspecting visitor. The fact that the appellant was an experienced tiler did not negate the respondent's duty to warn of a concealed danger that was not apparent. The court applied the principles of occupiers' liability, holding that a reasonable occupier would have provided a warning of the substantial aperture concealed beneath the gyprock.

Consequently, the appeal was allowed, the verdict and judgment in favour of the respondent were set aside, and judgment was entered for the appellant in the sum of $163,696. The respondent was ordered to pay the appellant's costs of the trial and the appeal, with a certificate for the latter under the Suitor's Fund Act, 1951, if applicable.

Orders

Orders of the court

1. Appeal allowed; 2. Set aside the verdict and judgment of Acting Judge Murray dated 13 August 2004 in favour of the respondent and in lieu thereof enter a verdict and judgment for the appellant in the sum of $163,696; 3. The respondent to pay the appellant's costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act, 1951 if otherwise qualified

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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