Youkhana v Di Veroli - [2010] NSWCA 322

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Youkhana v Di Veroli [2010] NSWCA 322
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/266917

HEARING DATE(S):
19 November 2010

JUDGMENT DATE:
19 November 2010

EX TEMPORE DATE:
19 November 2010

PARTIES:
Lina YOUKHANA (appellant)
Cesare DI VEROLI (first respondent)
Lily DI VEROLI (second respondent)
Alex DI VEROLI (third respondent)
Esther Lynette DI VEROLI (fourth respondent)

JUDGMENT OF:
Hodgson JA Tobias JA Campbell JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20139/08

LOWER COURT JUDICIAL OFFICER:
James J

LOWER COURT DATE OF DECISION:
14 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Youkhana v Di Veroli [2009] NSWSC 942

COUNSEL:
M DALEY (appellant)
J SEXTON SC (1 – 4 respondents)

SOLICITORS:
Brydens Law Office (appellant)
Moray & Agnew (respondents)

CATCHWORDS:
TORT – Negligence – Plaintiff slips on stairs – Whether error by primary judge in not finding occupier negligent.

LEGISLATION CITED:
Civil Liability Act 2002 ss 5B and 5C

CATEGORY:
Principal judgment

CASES CITED:
Commercial Union Assurance Co of Aust Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Jones v Dunkel [1959] HCA 8; (1958 – 1959) 101 CLR 298
Mifsud v Campbell (1991) 21 NSWLR 725
Youkhana v Di Veroli [2009] NSWSC 942

TEXTS CITED:

DECISION:
Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT:

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2006/266917
SC 20139/08
HODGSON JA
TOBIAS JA
CAMPBELL JA
Friday 19 NOVEMBER 2010

Lina YOUKHANA v Cesare DI VEROLI and Ors

Judgment

HODGSON JA: On 14 October 2009 James J gave his decision in proceedings in which the appellant had sued the respondents for damages for personal injury suffered as a result of falling down stairs in premises which were occupied by the respondents. The primary judge gave a verdict for the respondents, finding that there was no breach of duty owed to the appellant: see Youkhana v Di Veroli [2009] NSWSC 942. The appellant appeals from that decision.
The primary judge also gave reasons and made findings of fact relevant to damages. The appellant also appeals from that aspect of the primary judgment.
I will begin with an outline of facts that can be accepted as not being in dispute.
Some time in 2001 the appellant was contracted as a sales consultant with Limited Addition Holdings Pty Ltd (Limited Addition), being a clothing business. The appellant was not an employee of Limited Addition. Limited Addition was named as fifth defendant in the proceedings but was wound…

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.

Continue reading Youkhana v Di Veroli

Details

AGLC: Youkhana v Di Veroli [2010] NSWCA 322
Case: [2010] NSWCA 322
Decision Date: 19 November 2010

CaseChat Overview and Summary

In *Youkhana v Di Veroli*, the plaintiff, Ms Youkhana, appealed to the New South Wales Court of Appeal against a decision of the primary judge who had found that the occupier, Mr Di Veroli, was not negligent when Ms Youkhana slipped and fell on stairs.

The central legal issue before the Court of Appeal was whether the primary judge had erred in failing to find the occupier negligent in relation to the plaintiff's fall. This required the Court to consider the duty of care owed by an occupier to a visitor and whether that duty had been breached.

The Court of Appeal dismissed the appeal, upholding the primary judge's finding. The reasoning focused on the evidence presented at trial regarding the condition of the stairs and the steps taken by the occupier to ensure their safety. The Court applied the principles of negligence, considering the foreseeability of the risk of harm and the reasonableness of the occupier's conduct in the circumstances. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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