Scott v Wanklyn - [2016] VSC 382

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA

COMMON LAW DIVISION

S CI 2015 04267

ANTHONY ROY SCOTT	Plaintiff
v
ROSS HOWARD WANKLYN	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Wangaratta
DATE OF HEARING:	26, 27 & 31 May 2016
DATE OF JUDGMENT:	8 July 2016
CASE MAY BE CITED AS:	Scott v Wanklyn
MEDIUM NEUTRAL CITATION:	[2016] VSC 382

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NEGLIGENCE – Personal injury – Occupier’s liability pursuant to the Wrongs Act 1958 (Vic) s 14B(3) – Plaintiff stepped into a trench dug on the defendant’s property and fell – Defendant ran business part time from premises – Defendant in breach of duty to take care to avoid injury to plaintiff by reason of the state of the premises – Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Erickson v Bagley [2015] VSCA 220 cited.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti, QC with Mr M Seelig	Garden & Green
For the Defendant	Mr D McWilliams	DLA Piper

HIS HONOUR:

Introduction

On 24 December 2014 the plaintiff (Mr Scott), while attending on property owned and occupied by the defendant (Mr Wanklyn), fell and suffered injuries, including a subcapital fracture of the left femur. The plaintiff commenced this proceeding on 17 August 2015, alleging that there was negligence, or breach of the duty in s 14B(3) of the Wrongs Act 1958 (the Wrongs Act), by the defendant which was a cause of his injuries.

The fall occurred at about noon on 24 December. Mr Scott had been driven to Mr Wanklyn’s property by his daughter, Carol Tompkins (Mrs Tompkins), to collect a wooden chair which Mr Wanklyn was repairing for him. Mr Wanklyn was not present at the premises when Mr Scott fell, but returned a short time later.

After alighting from Mrs Tompkins’ car, Mr Scott walked across a gravel driveway area intending to step into a shed where he understood the chair to be. As he stepped forward he placed his left foot on the driveway close to the concrete floor of the shed. Mr Scott alleges that his foot went into a trench which was about eight or nine inches wide and about six inches deep, as a consequence of which he lost his balance, fell backwards and suffered the injury.

There was no dispute between the parties as to the existence of the trench. However, there was a critical dispute as to the size of the trench. Mr Wanklyn said that he had dug the trench that morning, and that it was about 75 millimetres by 75 millimetres, or three inches by three inches, in dimension.

The defendant placed reliance on a number of factual circumstances, including the nature of the premises, the frequency of visitors at the premises, the size of the trench and the fact that its existence should have been obvious to a person walking across the driveway, to argue that there was no breach of the duty owed by the defendant…

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 Scott v Wanklyn

Details

AGLC: Scott v Wanklyn [2016] VSC 382
Case: [2016] VSC 382
Decision Date: 8 July 2016

CaseChat Overview and Summary

The case of Scott v Wanklyn involves a plaintiff who sustained personal injuries after stepping into a trench on the defendant’s property, which had been dug for an extension to a shed. The dispute revolves around the defendant’s liability under the Wrongs Act 1958 (Vic) for injuries caused by the state of the premises. The matter was heard in the County Court of Victoria.

The primary legal issue before the court was whether the defendant breached their duty of care to the plaintiff by failing to ensure the safety of the premises. Specifically, the court needed to determine if the trench was an obvious hazard, whether the defendant took reasonable steps to prevent access to the trench, and if the defendant could be held liable for the injuries sustained by the plaintiff. The court also considered whether the defendant’s part-time business operation from the premises influenced the applicable standard of care.

In delivering the judgment, the court held that the defendant was indeed liable for the plaintiff’s injuries. The court found that the trench posed a significant risk to anyone who might inadvertently step into it, and the defendant had not taken adequate measures to prevent such an occurrence. The court noted that the hazard was not obvious and that the defendant could reasonably have been expected to take steps to secure the area. The court relied on precedents such as Roads and Traffic Authority of NSW v Dederer and Erickson v Bagley to support its findings. The court concluded that the defendant’s partial business use of the property did not absolve them of their duty of care towards visitors to the premises.

The court ordered the defendant to compensate the plaintiff for the injuries sustained, including damages for pain and suffering, medical expenses, and loss of earnings. The exact amount of compensation was to be determined in subsequent proceedings.

Orders