Kilbourne v McGuiggan [2006] NSWDC 103

New South Wales District Court

CITATION: Kilbourne v McGuiggan [2006] NSWDC 103

HEARING DATE(S): 30, 31 October 2006, 1 November 2006

JUDGMENT DATE: 3 November 2006

EX TEMPORE JUDGMENT DATE : 11/03/2006

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Verdict for the defendant; 2. Plaintiff to pay the defendant's costs of the proceedings on an ordinary basis up to and including 20 March 2004 and on an indemnity basis thereafter; 3. Exhibits retained for 28 days

CATCHWORDS: Fall on rented residential property

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

Wyong v Shirt (1980) 146 CLR 40 Romeo v The Conservation Commission of Northern Territory (1998) 192 CLR 431 CASES CITED: Hill v Chiaverini [2004] NSWCA 265 Seiko Australia Pty Ltd v Da Rin [2001] NSWCA 84 Neindorf v Junkovic (2005) 222 ALR 631 Jones v Bartlett (2000) 205 CLR 166

PARTIES: Jody Kilbourne Graham McGuiggan

FILE NUMBER(S): Coffs Harbour 42 of 2003

COUNSEL: Plaintiff E J Johnston Defendant J Guihot

SOLICITORS: Plaintiff Harbour Law Defendant Moray & Agnew

JUDGMENT

HER HONOUR

1 The plaintiff, Jody Kilbourne, claims damages in respect of a significant injury to her left knee. Her claim is that the injury occurred when she fell on premises at 97 Fiddaman Road, Emerald Beach. Those premises are owned by the defendant and were occupied at the time of the plaintiff's fall by her as his tenant.

2 The plaintiff said that she fell on 28 October 2001, when she misplaced her footing at the edge of a concrete driveway providing for pedestrian and vehicular access to the property. She could not state the time at which she fell, but it was likely that it was late in the evening because the notes of the triage nurse indicate that she was seen at Coffs Harbour Base Hospital at fifty four minutes past midnight.