Yahiya v Gullone - [2004] WADC 234

YAHIYA -v- GULLONE [2004] WADC 234

Last Update: 30/11/2004

YAHIYA -v- GULLONE [2004] WADC 234
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WADC 234
Case No:	CIV:1352/2002	Heard:	19-20 JULY 2004
Coram:	EATON DCJ	Delivered:	26/11/2004
Location:	PERTH	Supplementary Decision:
No of Pages:	16	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff, Defendant's claim of contributory negligence dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	TOURKIAN YAHIYA GIUSEPPE GULLONE
Catchwords:	Torts Occupier's liability Hidden danger Contributory negligence Turns on own facts
Legislation:	Occupiers' Liability Act 1985
Case References:	Astley v Austrust Ltd (1999) 197 CLR 1 Brandi v Mingot (1976) 12 ALR 551 Jones v Dunkel (1959) 101 CLR 298 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 5120 Gondoline Pty Ltd v Hansford, unreported; SCt of WA, BC 200204570; 14 August 2002 Hoyts Pty Ltd v Burns (2003) 201 ALR 470 McMahon v Griffin Coal Mining Co Pty Ltd, unreported; SCt of WA; BC9702069; 16 May 1997 Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; SCt of WA; Library No 980520; 14 September 1998 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 West Australian Trotting Association v Zafer, unreported; SCt of WA; BC9601616 26 April 1996 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40 Ingrilli v Desales [1998] WASCA 283 Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298 Boyd v Fremantle Steel Fabrication Co (WA) Pty Ltd, unreported; SCt of WA; Library No 970272; 3 June 1997

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : YAHIYA -v- GULLONE [2004] WADC 234 CORAM : EATON DCJ HEARD : 19-20 JULY 2004 DELIVERED : 26 NOVEMBER 2004 FILE NO/S : CIV 1352 of 2002 BETWEEN : TOURKIAN YAHIYA

Plaintiff

AND

GIUSEPPE GULLONE

Defendant

Catchwords:

Torts - Occupier's liability - Hidden danger - Contributory negligence - Turns on own facts

Legislation:

Occupiers' Liability Act 1985

(Page 2)

Result:

Judgment for the plaintiff

Defendant's claim of contributory negligence dismissed

Representation:

Counsel:

Plaintiff : Mr B L Nugawela

Defendant : Mr J J Sheldrick

Solicitors:

Plaintiff : Phillips Fox

Defendant : Les Sephten

Case(s) referred to in judgment(s):

Astley v Austrust Ltd (1999) 197 CLR 1
Brandi v Mingot (1976) 12 ALR 551
Jones v Dunkel (1959) 101 CLR 298

Case(s) also cited:

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 5120
Gondoline Pty Ltd v Hansford, unreported; SCt of WA, BC 200204570; 14 August 2002
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
McMahon v Griffin Coal Mining Co Pty Ltd, unreported; SCt of WA; BC9702069; 16 May 1997
Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; SCt of WA; Library No 980520; 14 September 1998
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
West Australian Trotting Association v Zafer, unreported; SCt of WA; BC9601616 26 April…

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.

Keep reading for free

Create a free CaseChat account to read Yahiya v Gullone and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] WADC 234
Decision Date: 26 NOVEMBER 2004

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Yahiya, and the defendant, Gullone. The plaintiff alleged that the defendant was negligent in maintaining a safe environment on their property, resulting in an injury to the plaintiff. The case was heard in the relevant Australian court. The defendant argued that the plaintiff's injury was due to their own negligence, and that they were therefore not liable. The court was required to determine whether the defendant owed a duty of care to the plaintiff, whether there was a breach of that duty, and whether the plaintiff's own negligence contributed to their injury.

The court considered the principles of occupier's liability, and whether the defendant had taken reasonable steps to prevent foreseeable harm to visitors on their property. The court also considered the principle of contributory negligence, and whether the plaintiff's own actions contributed to their injury. The court found that the defendant had breached their duty of care by failing to take reasonable steps to prevent harm to the plaintiff. The court also found that the plaintiff's own negligence did not contribute to their injury.

The court therefore dismissed the defendant's claim of contributory negligence and found in favour of the plaintiff. The court's decision was based on the specific facts of the case, and the court emphasised that each case turns on its own facts. The final orders of the court were that judgment be entered in favour of the plaintiff and that the defendant's claim of contributory negligence be dismissed.

Orders

Orders of the court

Judgment for the plaintiff, Defendant's claim of contributory negligence dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.