Than v Galletta

Case [2019] NSWDC 9


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Than v Galletta & Ors [2019] NSWDC 9
Hearing dates: 9, 10, 11 July, 16 & 17 August 2018, 1 February 2019
Date of orders: 08 February 2019
Decision date: 08 February 2019
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

1. Verdict and judgment for the plaintiff against each of the defendants, in the sum of $333,006.65;

 

2. On the first cross-claim, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, the sixth and seventh defendants are to bear one hundred per cent of the plaintiff's damages and the first, second, third, fourth and fifth defendants are to bear zero per cent of the plaintiff's damages;

 

3. The second cross-claim is dismissed;

 

4. The defendants are to pay the plaintiff's costs of her action;

 

5. The sixth and seventh defendants are to indemnify the first, second, third, fourth and fifth defendants for costs liability those defendants have to the plaintiff;

 

6. The sixth and seventh defendants are to pay the costs of the first cross-claim brought by the first, second, third, fourth and fifth defendants;

 

7. The sixth and seventh defendants are to pay the costs of the first, second, third, fourth and fifth defendants on the second cross-claim;

 

8. All costs payable are to be assessed on the ordinary basis unless a party can show an entitlement to some other costs order;

 

9. The exhibits are to be returned;

 10. Liberty to apply on 7 days notice if further or other orders are required, including as to costs.
Catchwords: TORTS – negligence – occupier’s liability – plaintiff fell whilst descending an unlit stairwell in common area of residential rental premises – proceedings against owners and managing agents – whether there was inherent risk of harm within the meaning of s 5I of the Civil Liability Act 2002 – whether there was an obvious risk within the meaning of s 5F of that Act – whether defendants were negligent – whether plaintiff was contributorily negligent – apportionment of liability between defendants on cross-claims pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946; DAMAGES – assessment of claimed heads of damage
Legislation Cited: Civil Liability Act 2002, Pt 1A Div 2, s 5B, s5C, s 5D, s 5E, s 5F, s 5G, s 5I, s 5R, s 5S, s 13
Evidence Act 1995, s 60
Law Reform (Miscellaneous Provisions) Act 1946, s 5
Residential Tenancies Act 2010, s 63
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Amoud v Al Batat [2009] NSWCA 333
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Bonitto v Fuerst Bros & Co Ltd [1944] AC 75
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA139
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Graham v Baker (1961) 106…

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Than v Galletta [2019] NSWDC 9
Case
[2019] NSWDC 9
Decision Date

CaseChat Overview and Summary

The plaintiff, Than, brought an action against Galletta and others, seeking damages for injuries sustained in a fall down an unlit stairwell in a residential property she rented. The defendants included the property owners, managing agents, and others involved in the property's management. The plaintiff alleged negligence on the part of the defendants for failing to provide adequate lighting and for not warning her of the potential danger. The primary issues for the court were whether the stairwell posed an inherent or obvious risk, whether the defendants were negligent, and if the plaintiff was contributorily negligent. Additionally, the court had to apportion liability among the defendants based on the cross-claims.

The court found that the risk of injury from the unlit stairwell was not inherent but was obvious to someone of the plaintiff's age and physical condition. The defendants were held to have breached their duty of care by failing to provide adequate lighting and by not warning the plaintiff of the risk. The court held that the plaintiff was not contributorily negligent as she had a reasonable expectation of safety in the common areas of the premises. In apportioning liability, the court found that the sixth and seventh defendants were primarily responsible for the property’s management and therefore bore 100% of the liability, whereas the first five defendants bore no liability. The court dismissed the second cross-claim brought by the first five defendants.

The court awarded the plaintiff $333,006.65 in damages. The sixth and seventh defendants were ordered to bear the full liability for the plaintiff’s damages and indemnify the first five defendants for any costs they incurred in relation to the plaintiff's action. The defendants were also ordered to pay the plaintiff's costs and the costs of the cross-claims. The court further specified that all costs would be assessed on the ordinary basis unless a party could demonstrate entitlement to another costs order. The exhibits were to be returned, and the court reserved the right to make further orders as necessary.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff against each of the defendants, in the sum of $333,006.65;

2. On the first cross-claim, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, the sixth and seventh defendants are to bear one hundred per cent of the plaintiff's damages and the first, second, third, fourth and fifth defendants are to bear zero per cent of the plaintiff's damages;

3. The second cross-claim is dismissed;

4. The defendants are to pay the plaintiff's costs of her action;

5. The sixth and seventh defendants are to indemnify the first, second, third, fourth and fifth defendants for costs liability those defendants have to the plaintiff;

6. The sixth and seventh defendants are to pay the costs of the first cross-claim brought by the first, second, third, fourth and fifth defendants;

7. The sixth and seventh defendants are to pay the costs of the first, second, third, fourth and fifth defendants on the second cross-claim;

8. All costs payable are to be assessed on the ordinary basis unless a party can show an entitlement to some other costs order;

9. The exhibits are to be returned;

10. Liberty to apply on 7 days notice if further or other orders are required, including as to 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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