Stanton v Marino - [2000] NSWCA 134

CITATION: Stanton & Anor v Marino [2000] NSWCA 134

FILE NUMBER(S): CA 40880/98

HEARING DATE(S): 23 May 2000

JUDGMENT DATE:
25 May 2000

PARTIES :

Harry Tennyson Stanton & Patricia Betty Stanton - Appellants
Anthony John Marino - Respondent

JUDGMENT OF: Powell JA at 1; Giles JA at 2; Fitzgerald JA at 17

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 9704/97

LOWER COURT
JUDICIAL OFFICER : Garling DCJ

COUNSEL: R C Tonner - Appellants
H G Shore - Respondent

SOLICITORS: Adrian Batterby, Sydney - Appellants
Graham Jones, Sydney - Respondent

CATCHWORDS: NEGLIGENCE - occupier's liability - turns on own facts.

CASES CITED:
Australian Safeway Stores Ltd v Zaluzna (1987) 162 CLR 479;
Stannus v Graham (1994) Aust Tort Reports 61,561.

DECISION: Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40880/98

DC 9704/97
POWELL JA

GILES JA

FITZGERALD JA

Thursday 25 May 2000

STANTON & ANOR v MARINO

JUDGMENT
1    POWELL JA: I agree with Giles JA.
2    GILES JA: This was an appeal from a verdict and judgment for the plaintiff in an occupiers liability case. Quantum was not in issue, but the defendants said that they should not have been found to have been negligent or that the plaintiff should have been found to have been contributorily negligent.
3    The defendants owned and occupied a property at Revesby. In the back yard of the property was a swimming pool. The ground fell away so that the rear part of the pool was elevated above the ground. The pump for the pool was at the lower level, behind the pool.
4    The plaintiff was a swimming pool serviceman employed by Swimart at Padstow. One of the defendants asked Swimart to look at the operation of the pool cleaner, and on 6 November 1995 the plaintiff went to the property to do so. He had been told that no one would be home, and found his own way around when he got to the property.
5    The plaintiff looked at the pool cleaner in the pool and at the skimmer box, and went to check the pump. To get to the pump he had to go out of the pool enclosure and along a grassed area at the side of the pool, following a track through long grass towards the back of the property. He came to a rock wall beyond which there was a drop, variously estimated from 40 centimetres to a little under a metre, to the lower level. He put his foot on a rock at the top of the wall, on the edge of the track, in order to step down. The rock tilted forward slightly, and the plaintiff lost his balance and fell forward onto the lower level. He twisted his knee severely. The rock was not dislodged.
6    The defendants used to follow the same path to the lower level, but because of bad hips in one case and small stature in 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 Stanton v Marino

Details

AGLC: Stanton v Marino [2000] NSWCA 134
Case: [2000] NSWCA 134
Decision Date: 25 May 2000

CaseChat Overview and Summary

The appeal concerned a claim in negligence brought by the plaintiff, Stanton, against the defendant, Marino, in relation to injuries sustained by the plaintiff at the defendant's premises. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in finding that the defendant had not breached their duty of care owed to the plaintiff as an occupier. This involved an assessment of whether the defendant had taken reasonable precautions to prevent the plaintiff from suffering injury due to the condition of the premises.

The Court of Appeal affirmed the trial judge's findings, concluding that the specific circumstances of the case did not establish a breach of the occupier's duty of care. The court applied the established principles of occupiers' liability, emphasizing that such claims are highly fact-dependent and require a careful evaluation of the foreseeability of the risk and the reasonableness of the precautions taken by the occupier.

The appeal was dismissed, and the defendant was awarded costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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CITATION:	Stanton & Anor v Marino [2000] NSWCA 134
FILE NUMBER(S):	CA 40880/98
HEARING DATE(S):	23 May 2000
JUDGMENT DATE:	25 May 2000
PARTIES :	Harry Tennyson Stanton & Patricia Betty Stanton - Appellants Anthony John Marino - Respondent
JUDGMENT OF:	Powell JA at 1; Giles JA at 2; Fitzgerald JA at 17

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9704/97
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL:	R C Tonner - Appellants H G Shore - Respondent
SOLICITORS:	Adrian Batterby, Sydney - Appellants Graham Jones, Sydney - Respondent
CATCHWORDS:	NEGLIGENCE - occupier's liability - turns on own facts.
CASES CITED:	Australian Safeway Stores Ltd v Zaluzna (1987) 162 CLR 479; Stannus v Graham (1994) Aust Tort Reports 61,561.
DECISION:	Appeal dismissed with costs.