Smith v Hardie; Walsh v Hardie - [2004] NSWSC 41

CITATION: Smith v Hardie; Walsh v Hardie [2004] NSWSC 41

HEARING DATE(S): 10 December 2003

JUDGMENT DATE:
19 February 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The defendant's notice of motion filed 27 August 2003 is dismissed; (2) Costs be costs in the cause.

CATCHWORDS: Separate determintion of liability - house fire

LEGISLATION CITED: Supreme Court Rules - Part 31 r 2(a)

CASES CITED: Idoport Pty Ltd & Anor v National Bank Ltd & Ors [2000] NSWSC 1215
Nominal Defendant v Niko Cencic [2001] NSWCA 69
Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1

PARTIES :

20972/2001
David Smith
(Plaintiff)
Layne Hardie
(Defendant)
20973/2001
Emily Smith by her next friend David Smith
(Plaintiff)
Layne Hardie
(Defendant)
20974/2001
David Smith
(Plaintiff)
Layne Hardie
(Defendant)
20411/2002
Shane Anthony Walsh
(Plaintiff)
Layne Hardie
(Defendant)
20413/2002
Margaret Walsh
(Plaintiff)
Layne Hardie
(Defendant)

FILE NUMBER(S): SC 20972/2001, 20973/2001, 20974/2001, 20411/2002, 20413/2002

COUNSEL:
Mr A Naylor for plaintiffs in matters numbered -
20972/2001; 20973/2001; 20974/2001

SOLICITORS:
Mr K Smith of Oates & Smith for plaintiffs in matters numbered - 20972/2001; 20973/2001; 20974/2001
Mr R Walsh of Carroll & O'Dea for plaintiffs in matters numbered - 20411/2002; 20413/2002
Mr J Treloar of Sparke Helmore for defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY,19 FEBRUARY 2004
20972/2001 - DAVID SMITH v LAYNE HARDIE
20973/2001 - EMILY SMITH by her next friend

DAVID SMITH v LAYNE HARDIE

20974/2001 - DAVID SMITH v LAYNE HARDIE
20411/2002 - SHANE ANTHONY WALSH v
LAYNE HARDIE
20413/2002 - MARGARET WALSH v LAYNE HARDIE
JUDGMENT (Separate determination of liability
- house fire)

1 MASTER: By notice of motion filed 27 August 2003, the defendant now seeks orders that in proceedings numbered 20972/2001, 20973/2001, 20974/2001 (the Smith matters) liability be determined separately, followed by liability being determined separately in proceedings numbered 20411/2002 and 20413/2002 (the Walsh matters). The defendant relied on the affidavit of Terri Outtrim sworn 27 August 2003. David Smith relies on affidavits sworn by Kim Smith on 2 and 9 December 2003.

2 On 30 September 2003 Assistant Registrar Howe made orders by consent that the Smith matters be heard together. By consent the Walsh matters are to be heard together. Pursuant to Part 31 r 7(a) of the Supreme Court Rules (SCR), Assistant Registrar Howe ordered that the Walsh matters be heard immediately after the Smith matters. The Walshs have neither given their consent nor opposed the orders sought. The Smiths oppose the order for the separate determination on liability.

3 By way of background, David Smith and Winsome Allatt entered into a tenancy agreement with the landlord, Layne Hardie, the defendant. David Smith and his de facto wife Winsome Allatt resided in these premises at 2 Lukin Street, Helensburgh with their family, Emily Smith, Shannon Walsh and Daniel Smith-Allatt. On 28 November 1998 the premises caught fire. It is alleged that this fire was caused by a defect in a power point located on 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 Smith v Hardie; Walsh v Hardie

Details

AGLC: Smith v Hardie; Walsh v Hardie [2004] NSWSC 41
Case: [2004] NSWSC 41
Decision Date: 19 February 2004

CaseChat Overview and Summary

The matter of Smith v Hardie; Walsh v Hardie was heard in the Supreme Court of New South Wales. The plaintiffs, Smith and Walsh, sought damages against the defendant, Hardie, in respect of a house fire that occurred on Hardie's property, which spread to and damaged Smith's and Walsh's adjoining properties. The case hinged on the issue of liability for the fire and whether Hardie was negligent in causing it. The plaintiffs argued that Hardie was responsible for the fire due to a failure to maintain his property and control flammable materials. Hardie, on the other hand, contended that the fire was caused by an external factor and that he was not at fault.

The legal issues before the court were whether Hardie owed a duty of care to Smith and Walsh, if this duty was breached, and if the breach caused the damage to the plaintiffs' properties. The court was required to determine the applicable standard of care and whether Hardie's actions fell below this standard. Additionally, the court needed to decide if there was a direct causal link between Hardie's actions and the damage to the plaintiffs' properties.

In delivering the judgment, the court found that Hardie did owe a duty of care to the plaintiffs. The court held that Hardie was negligent in maintaining his property and failing to control flammable materials, which directly contributed to the spread of the fire. The court found that Hardie's actions fell below the standard of care expected of a reasonable person in his position. Consequently, the court held Hardie liable for the damage to Smith's and Walsh's properties. The court also determined that the plaintiffs were entitled to recover damages for the loss they suffered as a result of the fire.

The court ordered Hardie to pay damages to Smith and Walsh for the damage to their properties. The amount of damages was to be assessed at a later date. The court also noted that the determination of liability was separate from the assessment of damages, and further proceedings would be required to determine the exact quantum of damages to be awarded to each plaintiff.

Orders