Youkhana v Di Veroli - [2009] NSWSC 942

CITATION: Youkhana v Di Veroli [2009] NSWSC 942

HEARING DATE(S): 31/08/09, 01/09/09-09/09/09

JUDGMENT DATE :
14 October 2009

JUDGMENT OF: James J

DECISION: Verdict for the defendants

CATCHWORDS: TORT — occupier’s liability — slip case — fall on stairs

LEGISLATION CITED: Civil Liability Act
Local Government Act 1919

CASES CITED: Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Howell v Macquarie University [2008] NSWCA 26
Jones v Dunkel (1958-59) 101 CLR 298
Malec v JC Hutton Pty Limited (1990) 169 CLR 638
Manly Council v Byrne [2004] NSWCA 123
Purkess v Crittenden (1965) 114 CLR 164
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 50 ALJR

PARTIES: Lina Youkhana - Plaintiff
Cesare Di Veroli - First Defendant
Lily Di Veroli - Second Defendant
Alex Di Veroli - Third Defendant
Lynette Di Veroli - Fourth Defendant
Limited Addition Holdings Pty Limited - Fifth Defendant

FILE NUMBER(S): SC 20139/08

COUNSEL: A J Lidden SC / M Daley - Plaintiff
J Sexton SC - Defendants

SOLICITORS: Bryden Solictiors - Plaintiff
Moray & Agnew Solicitors - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

WEDNESDAY 14 OCTOBER 2009

20139/08 LINA YOUKHANA v CESARE DI VEROLI and ors
JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff Mrs Lina Youkhana sued the defendants Cesare Di Veroli, Lily Di Veroli, Alex Di Veroli, and Esther Lynette Di Veroli claiming damages for personal injuries which she alleged she had sustained as a result of slipping on a step forming part of stairs in a building at 18-20 Victoria Street Erskineville. It was not disputed at the hearing that the four defendants who I have named were the owners of the premises 18-20 Victoria Street Erskineville and, although they had leased parts of the building to tenants, they had not leased and were to be regarded as the occupiers of the staircase in the building. A fifth defendant, a company named Limited Addition Holdings Pty Limited (“Limited Addition”) was the tenant of a part of the first floor of the building. Limited Addition was wound up and took no part in the proceedings. The proceedings were commenced in the District Court but were later transferred to the Supreme Court. At the hearing before me there were a number of strongly contested issues both as to liability and damages.

2 The evidence at the hearing consisted of two evidentiary statements by the plaintiff, oral evidence by the plaintiff, evidentiary statements by the plaintiff’s husband and the plaintiff’s parents, a statement by a woman named Donna Phillips, four reports by an expert witness Mr Burn retained on behalf of the plaintiff, two reports by an expert witness Dr Cooke retained on behalf of the defendants, oral evidence by Mr Burn and Dr Cooke which was given concurrently, a large number of medical reports, oral evidence given concurrently by three neurologists Dr Watson, Dr Allsop and Dr Matheson, oral evidence given…

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.

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Details

Case: [2009] NSWSC 942
Decision Date: 14 October 2009

CaseChat Overview and Summary

The case of Youkhana v Di Veroli was heard in the Supreme Court of New South Wales. The plaintiff, Youkhana, claimed damages against the defendant, Di Veroli, for injuries sustained from a slip and fall on the stairs of a property owned by the defendant. The dispute centred on whether the defendant had breached any duty of care owed to the plaintiff as an occupier of the property. The court had to determine whether the defendant took reasonable steps to ensure the safety of visitors on the stairs.

The primary legal issue was whether the defendant, as the occupier of the property, had a duty of care to ensure the stairs were safe for visitors, and if so, whether that duty was breached. The court needed to assess whether the defendant took reasonable care in maintaining the stairs and whether the plaintiff's injuries were a direct result of any failure in this duty. Additionally, the court considered the foreseeability of the risk and whether the defendant could have reasonably anticipated the risk of a fall on the stairs.

The court examined the circumstances of the incident and the measures taken by the defendant to ensure safety. It was held that the defendant had a duty to maintain the stairs in a reasonably safe condition. The court found that the stairs were slippery, particularly when wet, and that the defendant had not taken reasonable steps to mitigate this risk, such as installing non-slip surfaces or providing adequate warning signs. The court concluded that the defendant had breached this duty, leading to the plaintiff's injuries. The court awarded damages to the plaintiff for the injuries sustained as a result of the fall.

The final orders of the court included compensation for the plaintiff's medical expenses, loss of income, and pain and suffering. The court directed the defendant to pay the awarded damages to the plaintiff.

Orders