Hypothetical Group Task

Theresa Green is suing the owner of a seaside flat that she was renting after suffering personal injury when a balcony guard rail fell away from its fittings. Theresa, who is 80, was in the habit of leaning against the balcony rail of a morning while having a smoke. That morning she leaned back against the rail and it broke away, whereupon she fell from the first storey balcony to the ground below. She suffered spinal fractures as a result. The flat is owned by Bryce Hinkley, who has been sued for negligence in the Supreme Court for damages exceeding $750,000. The allegation of negligence was that Hinkley allowed the guard railing to corrode.

At trial, Theresa gave evidence (i) that she had never seen the owner inspect the property; (ii) the guard rail was freshly painted, obscuring the rusty fittings; and (iii) photographs presented to the court clearly showed the screws fixing the section that gave away had sheared off and were in poor condition.

Hinkley denied he was negligent. He told the court that he had the property managed by a real estate agent; that he had painted the unit to refresh its appearance; and that Theresa was the cause of the accident by leaning on the guard rail. He did not, however, provide any evidence about a real estate agent, and was not able to name the agent when asked during cross-examination.

Discuss the significance of Hinkley's evidence. Consider the standard and burden of proof, as well as the applicability of the rule in Jones v Dunkel and relevant provisions of the Evidence Act.