Hamllton v Duncan [2010] NSWDC 90

New South Wales District Court

CITATION: Hamllton v Duncan [2010] NSWDC 90

HEARING DATE(S): 22 -24 March, and 22 April 2010

JUDGMENT DATE: 26 May 2010

JURISDICTION: Civil

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: TORTS - tripping at residential premises - "not insignificant" risk - whether risk calls for precautions to be taken - obvious risk or concealed danger - liability of occupier - contributory negligence

LEGISLATION CITED: Civil Liability Act 2002 ss 5B, 5R and 15B

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 Department of Housing and Works v Smith [No 2] [2010] WASCA 25 Guides Australia Inc v McMartin [2006] NSWCA 20 CASES CITED: Jaenke v Hinton (Supreme Court of Queensland, Court of Appeal, 3 November 1995) Jandson Pty Ltd v Welsh [2008] NSWCA 317 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 Vairy v Wyong Shire Council [2005] HCA 62.

Markos HAMLLTON PARTIES: Kaine DUNCAN Natalie DUNCAN

FILE NUMBER(S): 05/09 (Nowra)

COUNSEL: Mr A Stone of Counsel for the Plaintiff Mr R W Seton SC for the Defendants

SOLICITORS: John McGuire and Associates for the Plaintiff Curwoods Lawyers for the Defendants

1 The plaintiff worked for a hardware shop as a casual delivery driver. On 23 February 2006, he delivered a truckload of timber to 107 Basin View Parade, Basin View, where the defendants were constructing a substantial extension to their home. Ms Dobson, a co-worker, accompanied the plaintiff. She drove a second truck to the premises. The plaintiff and Ms Dobson parked their trucks on the grass at the front of the premises. As the plaintiff was walking around the back of his truck, his left foot entered a hole in the ground and he fell, sustaining a significant left ankle injury. The hole was 9 cm deep. It had a diameter of 35 to 40 cm. Grass growing from the hole was darker than the immediately surrounding grass, which was mottled. The accident site is depicted in Exhibit C, photographs that were taken on the day of the accident. The plaintiff sued the defendants, claiming that they breached their duty of care as occupiers.