Australian Postal Corporation v Gallard

NEW SOUTH WALES COURT OF APPEAL

CITATION:         Australian Postal Corporation v Gallard [2000]  NSWCA 316

FILE NUMBER(S):
40258/99

HEARING DATE(S):          3 November 2000

JUDGMENT DATE:           03/11/2000

PARTIES:
Australian Postal Corporation (Appellant)
Noeleen Rhonda Gallard (Respondent)

JUDGMENT OF: Sheller JA Stein JA Heydon JA   

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):               DC 10/96

LOWER COURT JUDICIAL OFFICER:          Puckeridge DCJ

COUNSEL:
J C Sheahan SC/M B Boulton (Appellant)
R J Burbidge QC/Ms M A Tredoux (Respondent)

SOLICITORS:
Clarke & Kann (Appellant)
Budd & Piper (Respondent)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal dismissed
Appellant to pay the respondent's costs, and to pay those costs on an indemnity basis from 4 February 2000. 

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40258/98
  DC 10/96

SHELLER JA
  STEIN JA
  HEYDON JA

Friday, 3 November 2000

AUSTRALIAN POSTAL CORPORATION v GALLARD

JUDGMENT

1. HEYDON JA:  

   Background
   This is an appeal by the defendant from a verdict and judgment for the plaintiff given by Puckeridge DCJ, QC, on 18 March 1999 in the sum of $331,537 with costs. 

2. On the morning of 12 December 1995 the plaintiff left the post office at Tweed Heads.  While walking down a ramp, which led from the front of the post office to the street, she slipped, fell forward and hit her chin on a cement ledge. 

3. The plaintiff called uncontradicted evidence from an expert witness, Dr Coyle, to the effect that that the “ramp had a manifestly unsafe angle of 11 degrees” and “that certain tests which he carried out, which showed wide variations between the static and dynamic coefficient of friction, indicated to him the slippery surface of the ramp and that it was inevitable that someone would come to grief” (Red 102C-K). 

4. The trial judge made the following findings (Red 104S-105F):

   “I find that the ramp, because of its angle, was slippery, as found by Dr Coyle, and that it presented a foreseeable risk of injury to persons using the ramp as conceded by the defendant, particularly with its non-slip finish.  However, in finding that the ramp as constructed the angle of eleven degrees presented a foreseeable risk I also take into account that that risk has to be assessed in the circumstances that the ramp was in frequent and daily use by people using the post office facilities.  On the evidence of Dr Coyle that was an ever present risk.

   I find that the plaintiff slipped and fell on the ramp as a result of the steepness or angle of the ramp.  I find that the defendant unreasonably failed to adopt any of the measures suggested by Dr Coyle to avoid risk of injury to the plaintiff due to the steepness of the ramp.”

5. In relation to a defence of contributory negligence, the trial judge said (Red 112I-M):

   “I am not satisfied that the plaintiff failed to keep a proper lookout.  I am not satisfied that she was in such a position on the ramp that she could use the handrail said…