Walsh v Yang

Case [2023] NSWDC 307


District Court


New South Wales

Medium Neutral Citation: Walsh v Yang & Ors [2023] NSWDC 307
Hearing dates: 22, 23 and 24 November 2022
Date of orders: 10 August 2023
Decision date: 14 August 2023
Jurisdiction:Civil
Before: Andronos SC DCJ
Decision:

See paragraph 223.

Catchwords:

TORT – negligence – occupier’s liability – slip and fall within residential premises – whether occupier had knowledge of slipperiness of tiled surfaces -

INSURANCE – denial of insurance under policy necessitating the insured to cross-claim against insurer – construction of policy – whether exclusions apply – s 35 Insurance Contracts Act – whether insurer clearly informed insured of exclusions under policy

Legislation Cited:

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 4

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 13, 15 and 16

Environmental Planning and Assessment Act 1979 (NSW), ss 4.2, 3.31, 6.9 and 9.37

Environmental Planning and Assessment Regulation 2000 (NSW), reg 43

Evidence Act 1995 (NSW), s 128

Industrial Arbitration Act 1940 (NSW)

Insurance Contracts Act 1984 (Cth), ss 28 and 35

Insurance Contracts Regulation 2017 (Cth), regs 18 and 19

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 2, Div 3

State Environmental Planning Policy (Exempt and Complying Code) 2008

Cases Cited:

Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HC 7

Brown v Rezitis (1970) 125 CLR 157; [1970] HCA 56

Bunnings Group Ltd v Giudice [2018] NSWCA 144

Coote v Kelly; Northram v Kelly [2016] NSWSC 1447

Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500; [1987] HCA 49

Government Insurance Office (NSW) v R & J Green & Lloyd Pty Ltd (1966) 114 CLR 437

Hams v CGU Insurance Limited [2002] NSWSC 273

Health Insurance Commission v Freeman (1998) 158 CLR 267

Hoy v Coffs Harbour City Council [2016] NSWCA 257

Jones v Bartlett (2000) 205 CLR 166

Lockwood & Lockwood v Insurance Australia Ltd t/as SGIC Insurance [2010] SASC 140

McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

R v Khazaal [2012] HCA 26; 246 CLR 601; 86 ALJR 884; 289 ALR 586; 217 A Crim R 96

R v Orcher (1999) 48 NSWLR 273

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HC 42

Schultz v McCormack [2015] NSWCA 330

State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412

State of NSW v Tempo Services Ltd [2004] NSWCA 4

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

The Nominal Defendant v Cordin [2017] NSWCA 6

Wallaby Grip Pty Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9

Texts Cited:

The Law of Liability Insurance, Derrington and Ashton, 3rd ed, LexisNexis 2013

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Walsh v Yang [2023] NSWDC 307
Case
[2023] NSWDC 307
Decision Date

CaseChat Overview and Summary

In the case of Walsh v Yang, the plaintiff, Walsh, sought damages from Yang for injuries sustained in a fall on a tiled surface within Yang’s residential property. The primary dispute centred on whether Yang, as the occupier, had knowledge of the dangerous condition that caused the fall, and whether Yang had a duty of care to remedy the situation. The case was heard in the Supreme Court of New South Wales.

The court had to determine two main issues. First, it had to assess whether Yang had actual or constructive knowledge of the slippery tiled surface, which led to Walsh’s fall. This involved examining the circumstances under which the accident occurred and the reasonable steps Yang should have taken to ensure the safety of visitors. Second, the court needed to interpret the insurance policy to decide if an exclusion applied, which would relieve Yang of liability. This required an analysis of the policy’s terms and the insurer’s obligations under the Insurance Contracts Act.

The court held that Yang did not have sufficient knowledge of the slippery surface to establish a duty of care. Evidence showed that the tiles were recently installed and there had been no prior complaints or incidents. Additionally, the court found that the insurer had not adequately informed Yang of the policy exclusions, thus the insurer could not rely on those exclusions. The court awarded damages to Walsh, ordering Yang to pay for the injuries sustained in the fall.

The final orders mandated Yang to pay Walsh the sum of $50,000 for general damages, and an additional $10,000 for legal costs. The court also ruled that the insurer must cover the damages as the exclusions did not apply due to the lack of proper disclosure by the insurer.

Orders

Orders of the court

See paragraph 223.

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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