Denis Johnston v State of New South Wales [2015] NSWDC 46

District Court New South Wales

Medium Neutral Citation: Denis Johnston v State of New South Wales [2015] NSWDC 46 Hearing dates: 26-27 March and 30 March 2015 Decision date: 17 April 2015 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and Judgment for the plaintiff. For orders see [74] Catchwords: Torts; scope of duty of care of landlord; breach of duty; contributory negligence, assessment of damages. Legislation Cited: Civil Liability Act 2002 Cases Cited: Adeel's Palace Pty Limited v Moubarak (2009) 239 CLR 420 Allard v Jones Lang La Salle (Vic) Pty Limited [2014] NSWCA 325 Cavalier v Pope [1906] AC 428 Harris v Northern Sandblasting Pty Limited(1997) 188 CLR 313 Miller v Galderisi [2009] NSWCA 353 Shoalhaven City Council v Pender [2013] NSWCA 210 State of NSW v Fuller-Lyons [2014] NSWCA 424 Category: Principal judgment Parties: Denis Johnston (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C Hart (Plaintiff) W Reynolds (Defendant)

Solicitors: Bilbie Dan Solicitors Norton Rose Fulbright Australia File Number(s): 13/272371 Publication restriction: Nil

Judgment 1. The plaintiff claims damages for personal injuries suffered by him on 8 September 2010 at premises at Stockton. There is no issue that the defendant, via the Department of Housing ("the Department", also referred to as "Housing NSW") owned the relevant property and had leased it to the plaintiff pursuant to a residential tenancy agreement. 2. The plaintiff alleges that he sustained an injury whilst attempting to fit a light globe in an exterior light fitting at the premises. To do that task, he was standing on a chair, and as he fitted the globe into its socket, the globe exploded, causing him to twist and suffer a severe injury to his right knee. 3. By an Amended Statement of Claim the plaintiff pleads the following particulars of negligence: "Particulars of Negligence 1. By its servants and/or agents, failing to take reasonable steps to ensure the light fitting was safe for use by the plaintiff. 2. By its servants and/or agents, instructing the plaintiff to fit a light globe in the fitting, when it was unsafe to do so, due to the fitting being damaged by lack of maintenance of the premises. 3. By its servants and/or agents, causing the electrical power to be turned onto to the fitting when the plaintiff was attempting to fit the glove, such action being contrary to a written warning sign placed over the switch by the plaintiff, alternatively, failing to ensure the electrical power was switched off. 4. By its servants and/or agents, failing to provide any warning to the plaintiff of the danger to which he was exposed. 5. By its servants and/or agents, failing to carry out such inspections as were reasonably required to ensure the elimination of the risk of the light fitting being unsafe and likely to cause injury when used. 6. By its servants and/or agents, directing the plaintiff to stand on a chair to fit a globe to the fitting, such direction being likely to cause a risk of injury to the plaintiff insofar as the defendant, through its servants, was aware that the plaintiff suffered significant mobility problems and should have known that the activity posed a significant risk of the plaintiff being injured."