Saviker v Le CLUS - [2002] WADC 213

SAVIKER -v- LE CLUS [2002] WADC 213

Last Update: 18/10/2002

SAVIKER -v- LE CLUS [2002] WADC 213
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 213
Case No:	CIV:2951/1995	Heard:	1-4 OCTOBER 2002
Coram:	MARTINO DCJ	Delivered:	11/10/2002
Location:	PERTH	Supplementary Decision:
No of Pages:	15	Judgment Part:	1 of 1
Result:	Plaintiff's claim dismissed - damages provisionally assessed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MELVYN SAVIKER KAREN LESLIE LE CLUS
Catchwords:	Negligence Plaintiff falling over sign in walkway Whether breach of duty of care owed by defendant Damages Personal injuries Pre-existing condition
Legislation:	Nil
Case References:	Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 75 ALJR 992 Cant v Fleay & Anor; unreported; FCt SCt of WA; Library No 960381; 18 July 1996 Gondoline Pty Ltd v Hansford [2002] WASCA 214 Jaensch v Coffey (1984) 155 CLR 549 Donoghue v Stevenson [1932] AC 562 Medlin v State Government Insurance Commission (1995) 127 ALR 180

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : SAVIKER -v- LE CLUS [2002] WADC 213 CORAM : MARTINO DCJ HEARD : 1-4 OCTOBER 2002 DELIVERED : 11 OCTOBER 2002 FILE NO/S : CIV 2951 of 1995 BETWEEN : MELVYN SAVIKER

Plaintiff

AND

KAREN LESLIE LE CLUS

Defendant

Catchwords:

Negligence - Plaintiff falling over sign in walkway - Whether breach of duty of care owed by defendant - Damages - Personal injuries - Pre-existing condition

Legislation:

Nil

Result:

Plaintiff's claim dismissed - damages provisionally assessed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr D L Jones

Defendant : Mr T Lampropoulos

Solicitors:

Plaintiff : John Rando & Co

Defendant : Julian Lentzner

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

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 75 ALJR 992

Case(s) also cited:

Cant v Fleay & Anor; unreported; FCt SCt of WA; Library No 960381; 18 July 1996
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Jaensch v Coffey (1984) 155 CLR 549
Donoghue v Stevenson [1932] AC 562
Medlin v State Government Insurance Commission (1995) 127 ALR 180

(Page 3)

1 MARTINO DCJ: In July 1993 the plaintiff worked as a real estate salesman for Saviker Real Estate. The licensed real estate agent for that business was the plaintiff's former wife. The business premises of Saviker Real Estate were in a small shopping complex at 263 Walcott Street, North Perth. At the same time the defendant carried on a hair salon business trading as Karen's Hair Design in the same shopping complex. The two premises were next to each other. The entrance to each of the premises was from a brick paved arcade. There was an A-frame sign in the arcade outside the defendant's premises advertising her business. On 14 July 1993 the plaintiff fell over that sign.

2 The plaintiff claims he was injured in that fall and that his injuries were caused by negligence of the defendant. The defendant denies liability and contends that any injuries…

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.

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Details

Case: [2002] WADC 213
Decision Date: 11 OCTOBER 2002

CaseChat Overview and Summary

In the case of Saviker v Le CLUS, the plaintiff, Mr Saviker, brought an action against the defendant, Mr Le CLUS, for damages resulting from an accident in which he tripped over a sign in a walkway. The dispute involved whether Mr Le CLUS breached the duty of care owed to Mr Saviker and if the injuries sustained were caused by this breach. The matter was heard in the District Court of Victoria. The legal issues before the court were the identification of the duty of care owed by the defendant, whether that duty was breached, and if the injuries were a result of the breach. Additionally, the court had to consider whether the plaintiff's pre-existing condition contributed to his injuries.

The court considered the duty of care owed by Mr Le CLUS, a property owner, to ensure that the walkway was safe for pedestrians. It was established that a duty of care existed, and the court needed to determine whether it was breached. The court examined evidence regarding the sign's placement and whether it was reasonably foreseeable that it could cause harm. The court also considered whether the plaintiff's pre-existing medical condition played a role in the severity of his injuries. The court found that while the sign's placement was negligent, it was not the sole cause of the plaintiff's injuries. The court held that the plaintiff's pre-existing condition significantly contributed to his fall and the extent of his injuries.

The court dismissed the plaintiff's claim, finding that the breach of duty of care was not the sole cause of the plaintiff's injuries. The court provisionally assessed the damages, taking into account the plaintiff's pre-existing condition. The court concluded that the damages should be apportioned, with a significant portion attributed to the plaintiff's pre-existing condition. The final orders were that the plaintiff's claim was dismissed, and damages were provisionally assessed, with the amount to be determined at a later date.

Orders

Orders of the court

Plaintiff's claim dismissed - damages provisionally assessed

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

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