A homeowner has won a court dispute after a friend opened a bedroom window and it suddenly fell, trapping her hand between the upper and lower sashes until emergency services were able to release it around 15 minutes later.

Kerry Howard sought $120,000 in damages for negligence after she sustained a fracture in her left ring finger and lacerations to both her index fingers. Infection increased the pain and she underwent three surgical procedures and attended many medical appointments.

Ms Howard, 53, was renovating her house in mid 2020 and discovered black mould, and her doctor advised her to stay somewhere else while it was removed.

Her friend Edward Holdaway agreed she could stay in his bedroom in his house in Red Hill, ACT, while he travelled to Queensland. Mr Holdaway also had four boarders living at his house.

On arrival, Ms Howard noticed a musty smell so she opened the front window, and then opened the western-facing window on the pool side. The top sash suddenly fell, impacting her hand. 

That evening, she messaged Mr Holdaway and said she assumed he had public liability insurance. She raised the question of an insurance claim a few days later, noting that she was going to be immediately without income, and asked him about contacting his insurer. 

Magistrate Ian Temby, in the ACT Magistrates Court, ruled she had not succeeded in establishing her claim for damages and had “acted dishonestly in order to maximise the compensation she could obtain” by saying she was working full time hours at the time of the injury when she later admitted she had not done so since 2011. 

"I am not satisfied that the risk of harm which eventuated was foreseeable,” Magistrate Temby said.  

"I am not satisfied that the Defendant ought to have been aware that the (window’s) balancing mechanism was defective...and I do not consider that he was under an obligation to undertake any investigation or inspection of his room." 

Magistrate Temby was also not satisfied Ms Howard suffered from ongoing pain or restrictions in activities as a result.

"Her claimed current incapacity to undertake domestic activities is inconsistent with her ability to perform her gym routine and, in particular, her capacity to use a 16kg kettlebell in Russian swing exercises and a 32kg weight in performing bench presses,” the Magistrate said. 

"I do not accept her explanation that the scrubbing motion of cleaning a shower or toilet and the motion of vacuuming is such that she cannot undertake those activities without pain when she can perform weights routines in the gym that would exert significant pressure on her hands and wrists. 

"Given the range of activities undertaken by Ms Howard, particularly her gym routines, I do not accept that Ms Howard now suffers from much pain at all as a result of the incident, if any.” 

It was also noted she recently hiked at Machu Pichu and Rainbow Mountain in Peru, and visited several European countries where she used aerial hoops, and also travelled to the US, Darwin, Queensland, Victoria and the south coast. 

See the ruling here.