Maley v O’Shane [2017] VCC 1996

Plaintiff seeking compensation from the property owner after allegedly being injured while mowing lawn at rental property.

The Plaintiff paid rent to the defendant to live at his home. The plaintiff was doing some gardening in the backyard. The plaintiff says while she was mowing the lawn near the wall in the garden, the earth near the wall collapsed. She says she fell to the ground and suffered a broken arm and wrist.

The plaintiff sued the defendant under the Wrongs Act. This Act says the defendant owed the plaintiff a duty of care to ensure the plaintiff was not injured while she was renting the home. The duty of care meant the defendant had to make sure the home was safe. Specifically, the plaintiff said the defendant should have put proper support in place for the wall.

The plaintiff also sued under the Tenancy Agreement, and said the defendant had promised under that agreement to ensure the home and garden was maintained in good repair. The defendant failing to do so was a breach of contract which caused the plaintiff’s injuries.

To be successful in her claim, the plaintiff needed to prove, firstly, there was a breach of duty on the part of the defendant, and, if the answer was 'yes' to that question, the breach was a cause of the injury alleged.

Balance of probabilities

In a civil case, the plaintiff has to prove this ‘on the balance of probabilities’: this is called the ‘standard of proof’. The standard of proof is the measure the Judge holds the evidence up against to decide whether or not the plaintiff should be believed.

The plaintiff’s neighbours gave evidence that suggested the plaintiff had climbed on to the fence to spray their dogs, and had fallen from the fence and injured herself.

The Judge found the plaintiff and neighbours gave compelling evidence: this means all three gave evidence that was believable. As both versions of the events were compelling, the Judge couldn’t choose between them.

In response to the questions set out above about how to be successful in her claim, the Judge found the answer to the first question was ‘yes’, but the answer to the second question was ‘no’: the state of the retaining wall amounted to a breach of the duty owed to the defendant, but such breach was not proved to be a cause of the injury because the Judge couldn’t choose between the plaintiff’s evidence and the neighbours’ evidence about what caused the injury.

The Judge found that the plaintiff had not satisfied her case on the balance of probabilities.

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Page last updated: 16 September 2018