McKenzie v Day (No 2) [2016] NSWDC 236

District Court New South Wales

Medium Neutral Citation: McKenzie v Day (No 2) [2016] NSWDC 236 Hearing dates: 15 - 19 August 2016 Date of orders: 23 August 2016 Decision date: 23 August 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Verdict and judgment for the defendant against the plaintiff Catchwords: TORTS – Negligence – Action for damages for personal injury – Plaintiff visits home of 92 year-old defendant as a support worker in the course of her employment – Although plaintiff had visited about 50 times over a period of years, plaintiff had not previously gone beyond the backdoor – On this occasion, defendant asked plaintiff to bring in washing – Plaintiff went through backdoor and onto back verandah and noticed, twice, steps leading from back verandah to backyard – A wall-fixed clothesline above the steps – Sheets were hung on this line – Plaintiff approaches close to sheets to feel if they are dry – Plaintiff missteps and falls down two steps and breaks both ankles – Although a number of allegations were made, plaintiff's case ultimately that she was distracted by the sheets hanging on the clothesline and misjudged her step, causing her to fall – Plaintiff did not look to see where she was placing her step – Alleged that defendant ought to have warned plaintiff of danger of being distracted – Whether defendant was negligent – Whether plaintiff exercised reasonable case for her own safety – Whether defendant ought to have called her son who was a daily visitor to defendant's house – What use can be made of photographic evidence Legislation Cited: Civil Liability Act 2002 Local Government Act 1919 Cases Cited: Angel v Hawkesbury City Council [2008] NSWCA 130 Blacktown City Council v Hocking [2008] NSWCA 144 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 192 Francis v Lewis [2003] NSWCA 152 Kallouf v Middis [2008] NSWCA 61 Nominal Defendant v Kostic [2007] NSWCA 14 RTA v Dederer (2007) 234 CLR 330 RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Schultz v McCormack [2015] NSWCA 330 Stannus v Graham (1994) Aust Tort Reports [81-293] Wilkinson v Law Courts Ltd [2001] NSWCA 196 White v Benjamin [2015] NSWCA 75 Vairy v Wyong Shire Council (2005) 223 CLR 422 Category: Principal judgment Parties: Lesley McKenzie (Plaintiff) Lucy Day (Defendant) Representation: Counsel: Mr F Curran (Plaintiff) Mr J Guihot (Defendant)