Welch v Graham

[2012] QDC 103

DISTRICT COURT OF QUEENSLAND

CITATION:

Welch v Graham & Another [2012] QDC 103

PARTIES:

FLORENCE AGNES WELCH
(Plaintiff)
v
TIM GRAHAM
(First Defendant)
JANE GRAHAM
(Second Defendant)
NRMA INSURANCE AUSTRALIA LIMITED
ABN 11 000 016 722
(Third Defendant)

FILE NO/S:

3948/2010

DIVISION:

Trial

PROCEEDING:

Claim for damages

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

16 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2012

JUDGE:

Everson DCJ

ORDER:

The Defendants pay the Plaintiff the sum of $55,000.00.

The Defendants pay the Plaintiff’s costs of and incidental to the proceeding on the standard basis.

CATCHWORDS:

NEGLIGENCE – PERSONAL INJURIES- occupiers liability- where plaintiff sustained injuries as a result of slip and fall on stairs- whether contributory negligence

Wyong Shire Council v Shirt (1980) 146 CLR 40
Jaenke v Hinton (unreported Court of Appeal 3/11/95)
Woodward v The Proprietors of Lauretta Lodge unreported Court of Appeal 12/06/97)

COUNSEL:

SJ Given for the Plaintiff
KS Howe for the Defendant

SOLICITORS:

Sinnamon Lawyers for the Plaintiff
Moray & Agnew for the Defendant

1. In this proceeding, the plaintiff claims damages for negligence against the first and second defendants who are the owners and occupiers of a dwelling house ("the house") where she slipped and fell on 27 November, 2006, injuring herself ("the incident").

1. Quantum has been agreed by the parties in the sum of $55,000.00, including a Medicare refund in the sum of $5736.00, and a PBS refund in the sum of $58.60.

1. It remains for me to determine liability.  Such a determination must also take into account allegations of contributory negligence. 

1. The plaintiff is the aunt of the second defendant.  She was born on 18 July, 1930 and therefore 76 years of age at the date of the incident.  The second defendant and her husband, the first defendant, had purchased the house a few months earlier and the plaintiff helped them move in on 30 September, 2006.  Thereafter the plaintiff was a regular visitor at the house, assisting the second defendant with the care of her young twins.

1. The house is in a bushland setting with two flights of wooden sleeper steps ("the stairs") providing access to the front door.  These are illustrated in photographs 1 to 6 in Exhibit 1.  Above the lower flight of steps is a relatively small tree which was referred to in the evidence before me as "the gumnut tree".  A branch of this tree is shown to protrude across the stairs in photograph 2.  The gumnut tree dropped what were described in evidence as "gumnuts", a sample of which is the subject of photograph 8 in Exhibit 1.  It is generally cylindrical in shape, apparently hard and of a similar size to a car key for a late model Holden Commodore. No horticultural evidence was called by either party with a view to more precisely describing it or the tree in question and a specimen was not tendered during the course of the trial.

1. The gumnut tree was the only tree of this type on the…