Borg v The Owners of Strata Plan 64425 [2010] NSWDC 203

Borg v The Owners of Strata Plan 64425 [2010] NSWDC 203

The plaintiff's fall was caused when the heel of her shoe caught in the hole in the cracked tile. Although the tile was part of an encroachment into the Council footpath rather than land owned by the first five defendants, each of the first five defendants was an occupier of the entrance stairs and their occupation extended to the tiled landing and adjacent cracked tile because they assumed possession and control of that area and invited entrants to use it for access to and egress from the building. The cracked tile was a foreseeable, not insignificant risk of serious injury, and a reasonable occupier would have taken simple and inexpensive precautions to repair it; the first five...

Jurisdiction
Australia
Judgment Date
10 June 2010
Procedural Posture
Personal Injury Claim in Contract and Tort for Injuries Sustained in a Fall at Premises, With Cross Claims for Contribution or Indemnity / Judgment After Hearing in the District Court of New South Wales, Civil Jurisdiction
Outcome
Judgment for the plaintiff against each of the first five defendants, judgment on cross-claims between the 2nd, 3rd and 5th defendants, and judgment for the 6th defendant against the plaintiff.
Legal Topics
['duty of Care as Occupier' 'occupation and Control of Encroaching Tiled Area' 'breach of Duty and Causation' 'contributory Negligence' 'implied Warranty Under S 74 of the Trade Practices Act 1974 (cth)' 'contribution or Indemnity Under S 5 of the Law Reform (miscellaneous Provisions) Act 1946' 'assessment of Damages Under the Civil Liability Act 2002']
['personal Injury' 'negligence' "occupiers' Liability" 'damages' 'trade Practices' 'contribution Between Tortfeasors'] ['duty of Care as Occupier' 'occupation and Control of Encroaching Tiled Area' 'breach of Duty and Causation' 'contributory Negligence' 'implied Warranty Under S 74 of the Trade Practices Act 1974 (cth)' 'contribution or Indemnity Under S 5 of the Law Reform (miscellaneous Provisions) Act 1946' 'assessment of Damages Under the Civil Liability Act 2002']

Case Brief

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Procedural Posture

Personal Injury Claim in Contract and Tort for Injuries Sustained in a Fall at Premises, With Cross Claims for Contribution or Indemnity / Judgment After Hearing in the District Court of New South Wales, Civil Jurisdiction

Legal Issues

  1. 1 ["What caused the plaintiff's fall" 'On whose premises the plaintiff fell' "Whether the plaintiff's fall occurred on premises occupied by any of the defendants" 'Whether there was a foreseeable risk of injury to the plaintiff' 'Whether the defendants took such care as was reasonable in the circumstances' "Whether the defendants breached any duty that caused the plaintiff's injury" 'Whether the plaintiff failed to take reasonable care for her own safety' 'Whether a warranty was implied into the accommodation contract by s 74 of the Trade Practices Act 1974' 'Whether the 2nd defendant was in breach of the implied warranty' 'The extent of any contribution or indemnity under the cross-claims pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946']

Ratio Decidendi

The plaintiff's fall was caused when the heel of her shoe caught in the hole in the cracked tile. Although the tile was part of an encroachment into the Council footpath rather than land owned by the first five defendants, each of the first five defendants was an occupier of the entrance stairs and their occupation extended to the tiled landing and adjacent cracked tile because they assumed possession and control of that area and invited entrants to use it for access to and egress from the building. The cracked tile was a foreseeable, not insignificant risk of serious injury, and a reasonable occupier would have taken simple and inexpensive precautions to repair it; the first five...

Court Disposition

Judgment for the plaintiff against each of the first five defendants, judgment on cross-claims between the 2nd, 3rd and 5th defendants, and judgment for the 6th defendant against the plaintiff.

Orders

  • ['Judgment for the plaintiff against each of the first five defendants for $517,074.00.' 'Judgment for the 2nd defendant against the 3rd defendant for $258,537.00.' 'Judgment for the 3rd defendant against the 2nd defendant for $258,537.00.' 'Judgment for the 3rd defendant against the 5th defendant for $413,659.20.'...