District Court
New South Wales
Medium Neutral Citation: Wearing-Smith v Swift [2014] NSWDC 159 Hearing dates: 11, 12, 13 & 14/08/2014 Decision date: 09 October 2014 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the amount of $425,000;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORTS - occupier's liability - plaintiff fell off balcony in domestic premises when glass panel of balustrade gave way - whether breach of duty of care - whether contributory negligence Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5E Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Baker v Gilbert & Ors [2003] NSWCA 113
Derrick v Cheung [2001] HCA 48, (2001) 181 ALR 301
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42
McDonald v Robert Bryce & Co Ltd [2004] NSWCA 297
MA Partitioning & Ceilings Pty Ltd v Kezic [2005] NSWCA 414
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sea Coatings (Australia) Pty Ltd v Pascoe [2008] NSWCA 54
Shaw v Thomas [2010] NSWCA 169
Short v Barrett, NSWCA 164, 5 October 1990, unreported
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Thomas v Foreshore Marine Exhaust Systems Pty Limited [2005] NSWCA 451
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442Category: Principal judgment Parties: Peter Wearing-Smith (Plaintiff)
Anthony John Swift (First defendant)
Kim Louise Swift (Second defendant)Representation: Mr B Hughes SC with Mr T Meakes (Plaintiff)
Mr JM Morris with Ms EN Arulrajah (Defendant)
Gorman Jones (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2013/121518 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [2]
Issues
[3] - [5]
Evidence overview
[6] - [7]
Credit
[8] - [21]
Plaintiff
[9]
Mrs Montgomery
[10]
Mr Stobo
[11]
Mr Livingston
[12] - [13]
First defendant
[14] - [15]
Second defendant
[16]
Mr Dobson
[17] - [18]
Mr Mesker
[19] - [20]
Mr Burn
[21]
Facts
[22] - [129]
Plaintiff's background
[23]
Pre-accident description of the premises
[24] - [41]
Accident circumstances
[42] - [126]
Injuries, treatment and subsequent reviews
[127] - [129]
Issue 1 - Probable mechanism by which glass panel gave way
[130] - [135]
Issue 2 - Whether breach of duty of care and causation
[136] - [185]
Issue 3 - Alleged contributory negligence
[186] - [196]
Disposition
[197]
Costs
[198]
Orders
[199]
Nature of the case
The plaintiff, Mr Peter Wearing-Smith, brings these proceedings claiming damages for personal injury against the defendants, Mr Anthony John Swift, and his wife, Mrs Kim Louise Swift, alleging negligence arising out of the defendants' joint occupation of domestic premises at 45 Miowera Road, North Turramurra,…
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- AGLC
- Wearing-Smith v Swift [2014] NSWDC 159
- Case
- [2014] NSWDC 159
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the defendant breached the duty of care owed to the plaintiff as an occupier of the premises. The court also needed to assess whether the plaintiff's contributory negligence contributed to the accident. The central issue was the extent to which the defendant was liable for the plaintiff's injuries, and whether the plaintiff's actions contributed to the fall.
The court held that the defendant breached the duty of care owed to the plaintiff by failing to ensure that the balustrade was safe for use. The court found that the glass panel was not properly secured, and the defendant should have taken reasonable steps to ensure that it was safe. The court also found that the plaintiff was not contributory negligent, as she had no reason to believe that the balustrade was unsafe. The court awarded the plaintiff damages in the amount of $425,000, and ordered the defendant to pay the plaintiff's costs on the ordinary basis unless otherwise ordered. The exhibits were to be returned, and the plaintiff was granted liberty to apply on seven days' notice if further orders were required.
Orders
Orders of the court
1.Verdict and judgment for the plaintiff in the amount of $425,000;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Full text does not contain this section.