Le v Rawson [2009] NSWCA 332

Le v Rawson [2009] NSWCA 332

The appeal failed because the trial judge was entitled to accept the respondent's evidence and Mr Summers' evidence, reject the Oxleys' evidence, and find on the balance of probabilities that the respondent fell through the gap created by five missing balcony slats rather than intentionally leaving the balcony. The respondent did not have to prove the exact reason why she lost balance; it was sufficient that she proved she fell and that, but for the missing decayed slats which the landlord knew about and failed to repair or make safe, she would not have fallen to the ground and been injured. Although the trial judge misstated the contributory negligence test, the appellant did not prove...

Jurisdiction
Australia
Judgment Date
15 October 2009
Procedural Posture
Appeal in Negligence Proceedings for Personal Injury Damages From Rental Premises Balcony Fall / Appeal From District Court Decision of Mc Loughlin DCJ
Outcome
Appeal dismissed with costs.
Legal Topics
['dangerous Premises' 'duty of Care of Landlord' 'breach of Duty' 'causation' 'findings of Fact on Appeal' 'contributory Negligence' 'assessment of Damages' 'gratuitous Care']
['torts' 'negligence' 'personal Injury' 'landlord and Tenant'] ['dangerous Premises' 'duty of Care of Landlord' 'breach of Duty' 'causation' 'findings of Fact on Appeal' 'contributory Negligence' 'assessment of Damages' 'gratuitous Care']

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Procedural Posture

Appeal in Negligence Proceedings for Personal Injury Damages From Rental Premises Balcony Fall / Appeal From District Court Decision of Mc Loughlin DCJ

Legal Issues

  1. 1 ['Whether the trial judge erred in rejecting evidence that the respondent intentionally left or jumped from the balcony.' 'Whether the evidence supported a finding that the respondent fell through the gap left by missing balcony slats.' 'Whether causation was established despite uncertainty as to the precise mechanism by which the respondent lost balance or fell.' 'Whether contributory negligence was proved under the objective test in s 5R of the Civil Liability Act 2002.' "Whether the trial judge's assessment of damages for past and future economic loss and gratuitous care was flawed."]

Ratio Decidendi

The appeal failed because the trial judge was entitled to accept the respondent's evidence and Mr Summers' evidence, reject the Oxleys' evidence, and find on the balance of probabilities that the respondent fell through the gap created by five missing balcony slats rather than intentionally leaving the balcony. The respondent did not have to prove the exact reason why she lost balance; it was sufficient that she proved she fell and that, but for the missing decayed slats which the landlord knew about and failed to repair or make safe, she would not have fallen to the ground and been injured. Although the trial judge misstated the contributory negligence test, the appellant did not prove...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']