Trudy Yogini v Benjamin Charles Eveille & - [2006] ACTSC 13

TRUDY YOGINI v BENJAMIN CHARLES EVEILLE &
MELISSA JACQUELINE HERITAGE
[2006] ACTSC 13 (6 March 2006)

NEGLIGENCE – personal injury – plaintiff fell over building material protruding onto footpath from residential building site –liability of occupier – whether duty of care – whether breach of duty of care – whether contributory negligence

DAMAGES – personal injury – injury to knee, hip shoulder and neck

Volman (t/as Volman Engineering) v Lobb [2005] NSWCA 348
Burwood Council v Byrnes [2002] NSWCA 343
Griffiths v Kerkemeyer [1977] 139 CLR 161

No SC 450 of 2004

Judge: Marshall J
Supreme Court of the ACT
Date: 6 March 2006

IN THE SUPREME COURT OF THE       )
  )          No 450 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN: TRUDY YOGINI
Plaintiff

AND: BENJAMIN CHARLES EVEILLE
First Defendant

AND: MELISSA JACQUELINE HERITAGE
Second Defendant

O R D E R

Judge: Marshall J

Date: 6 March 2006

Place: Canberra

THE COURT ORDERS THAT:

There be judgment for the plaintiff in the sum of $37,024.65.

The parties file and serve written submissions on the question of costs within 14 days.

There be liberty to either party to apply on not less than 48 hours notice in writing to the other party.

On the morning of 30 January 2003, Ms Yogini took her son’s small Boston Terrier dog for a walk. She walked down her street, Hawdon Street, Ainslie, for a distance of about 50 metres from her home at 18 Hawdon Street. Ms Yogini commenced to walk past a block of land, from which a house had recently been removed, when she felt her loose-fitting shirt make contact with the upright end of a piece of reinforcing metal grid. She then tripped on the lower part of the metal grid which protruded onto the footpath from the land.
Ms Yogini sustained injuries in the fall. She injured her left knee, left hip, shoulder and neck. Until this incident, in recent times, Ms Yogini had been a fit woman in her mid fifties.
The property from which the metal grid protruded belonged to the defendants.
The following issues arise for determination:
·    Did the defendants owe a duty of care to Ms Yogini?
·    Did the defendants breach any duty of care owed to Ms Yogini?
·    Was there contributory negligence on Ms Yogini’s behalf?
·    What is the appropriate sum of damages?

The building site

Ms Yogini fell on the footpath outside 34 Hawdon Street, Ainslie. At that time 34 Hawdon Street had no dwelling on it but the defendants subsequently erected a dwelling on the land. The materials on the land included some piles of builder’s refuse.
The defendants had caused to be erected a temporary orange plastic mesh fence along part of the front boundary of the property. The orange mesh had been fastened to star pickets which had been hammered into the ground at regular intervals. The orange mesh did not reach over the driveway of the property. On the morning of 30 January 2003, a piece…

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: [2006] ACTSC 13
Decision Date

CaseChat Overview and Summary

In Trudy Yogini v Benjamin Charles Eveille & Melissa Jacqueline Heritage, the plaintiff, Ms Yogini, sued the defendants, Mr Eveille and Ms Heritage, for negligence after she fell over a piece of building material protruding onto the footpath from their residential building site. The plaintiff sustained injuries to her knee, hip, shoulder, and neck as a result of the fall. The case was heard in the Supreme Court of the Australian Capital Territory. The court was required to determine whether the defendants owed a duty of care to the plaintiff, whether there was a breach of that duty, whether the plaintiff was contributory negligent, and to assess the appropriate sum of damages.

The court found that the defendants did owe a duty of care to members of the public, including the plaintiff, as the property involved an appreciable risk that it may become a source of public nuisance. The court determined that the defendants breached their duty of care by not ensuring that the materials on the property were securely fenced off or contained on the land, and by not properly warning members of the public of the danger posed by the protruding metal grid. The court assessed the plaintiff's contributory negligence at 75%, finding that she should have made a greater effort to be more aware of the danger. The court assessed the general damages at $60,000, and after applying the 75% contributory negligence, awarded the plaintiff $37,024.65 in damages.

The court ordered that there be judgment for the plaintiff in the sum of $37,024.65, and that the parties file and serve written submissions on the question of costs within 14 days.

Orders