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Baker v Bunnings Group Limited

Baker v Bunnings Group Limited

Case [2020] NSWDC 310 18 June 2020

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District Court

New South Wales

Medium Neutral Citation: Baker v Bunnings Group Limited [2020] NSWDC 310
Hearing dates: 4-8 May 2020; 12 May 2020; 21 May 2020
Date of orders: 18 June 2020
Decision date: 18 June 2020
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed.
(3) Liberty to any party to make an application within 14 days to vary order (2) above.
(4) The exhibits are to be retained for 28 days.

Catchwords: Torts – negligence – Civil Liability Act claim – plaintiff falls on edge of kerb of raised concrete island in carpark of store operated by the defendant – whether defendant store operator breached a duty of care owed to the plaintiff – whether warning was required of kerb – whether some other delineation of kerb required – whether the passage over the island should have been prevented by ropes or barriers – degree of loss of the plaintiff – quantum of domestic assistance to be awarded to the plaintiff
Legislation Cited: Civil Liability Act 2002 (NSW), ss 15, 15B and 16
Civil Liability (Non-economic Loss) Amendment Order 2019
Evidence Act 1995 (NSW), s 136
Work Health & Safety Act 2011 (NSW)
Work Health & Safety Regulation 2011 (NSW)
Cases Cited: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Bruce v Apex Software Pty Ltd [2018] NSWCA 330
Burwood Council v Byrnes [2002] NSWCA 343
Council of the City of Sydney v Bishop [2019] NSWCA 157
Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Lloyd v Thornbury [2019] NSWCA 154
Miller v Galderisi [2009] NSWCA 353
Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Ryde City Council v Saleh [2004] NSWCA 219
Samco Pty v Wurth [2015] NSWCA 117
Smith v Alone [2017] NSWCA 287
Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
White v Benjamin [2015] NSWCA 75
Whitton v Dexus Funds Management Ltd [2019] NSWDC 579
Category: Principal judgment
Parties: Shirley‑Ann Baker (Plaintiff)
Bunnings Group Limited (Defendant)
Representation:
Counsel:
E G Romaniuk SC and S J Roulstone (Plaintiff)
G Jensen (Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
McCabe Curwood (Defendant)

File Number(s): 2018/00307583

Judgment

In these proceedings, the plaintiff, Ms Shirley-Ann Baker, brings a claim against the defendant, Bunnings Group Ltd, the operator of a hardware store situated at the relevant time at 215 Lake Road, Port Macquarie in the State of New South Wales, for damages in relation to personal injury suffered by the plaintiff on 25 October 2017 when she fell from a kerb…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Bunnings Group Limited

Details

AGLC: Baker v Bunnings Group Limited [2020] NSWDC 310
Case: [2020] NSWDC 310
Decision Date: 18 June 2020

CaseChat Overview and Summary

The plaintiff claimed damages against the defendant, a hardware store operator, for injuries sustained when she fell on the edge of a kerb in the carpark of the defendant’s store. The plaintiff alleged that the defendant breached a duty of care owed to her by failing to warn her of the kerb’s location and by not delineating the kerb in some other way. The plaintiff further contended that the defendant should have prevented passage over the island by using ropes or barriers. The defendant denied liability and argued that the plaintiff’s injuries were not a reasonably foreseeable consequence of its conduct. The case was heard in the District Court of New South Wales.

The legal issues before the court were whether the defendant breached a duty of care owed to the plaintiff and, if so, whether the plaintiff’s loss was too remote to attract liability. The court considered the foreseeability of the plaintiff’s injury, the risk of harm, and the measures that a reasonable person in the defendant’s position would have taken to prevent the risk. The court also considered the degree of loss the plaintiff suffered and the quantum of domestic assistance to be awarded to the plaintiff.

The court found that the defendant did not breach a duty of care owed to the plaintiff. The court held that the risk of the plaintiff falling on the kerb was not reasonably foreseeable and that the defendant had taken reasonable steps to warn visitors of the risk. The court also found that the plaintiff’s injuries were not a reasonably foreseeable consequence of the defendant’s conduct. The court held that the plaintiff’s loss was too remote to attract liability. The court further found that the plaintiff had not suffered any significant degree of loss and that no award of domestic assistance was warranted.

The court made a judgment in favour of the defendant and ordered that the plaintiff pay the defendant’s costs of the proceedings. The court also granted liberty to any party to make an application within 14 days to vary the costs order. The court ordered that the exhibits be retained for 28 days.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed.

(3) Liberty to any party to make an application within 14 days to vary order (2) above.

(4) The exhibits are to be retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Baker v Bunnings Group Limited [2020] NSWDC 310

Most Recent Citation

Baker v Bunnings Group Limited (No 2) [2020] NSWDC 449

Cases citing this decision · 1 of 1 shown

Baker v Bunnings Group Limited (No 2)
[2020] NSWDC 449 Para 1

…plication follows the handing down of the court’s judgment after the completion of the final hearing in the proceedings: Baker v Bunnings Group Ltd [2020] NSWDC 310. The plaintiff was held to be unsuccessful in her claim in negligence against the defendant. These reasons assume a familiarity with the judgment hande…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Whitton v Dexus Funds Management Limited
[2019] NSWDC 579

…246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75 Whitton v Dexus Funds Management Ltd [2019] NSWDC 579 Category: Principal judgment Parties: Shirley‑Ann Baker (Plaintiff) Bunnings Group Limited (Defendant) Representation: Counsel: E G Romaniuk SC and S J Roulstone (Plaint…
Council of the City of Sydney v Bishop
[2019] NSWCA 157

…512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of the City of Sydney v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Miller v Ga…
Lloyd v Thornbury
[2019] NSWCA 154

…v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Miller v Galderisi [2009] NSWCA 353 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Ryde C…
Bruce v Apex Software Pty Ltd
[2018] NSWCA 330

…y Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of the City of Sydney v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29…
Argo Managing Agency Ltd v Al Kammessy
[2018] NSWCA 176 Para 122

…ution, however, must be exercised in assessing photographs, “particularly as to perspective and distance”: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54].…
Smith v Alone
[2017] NSWCA 287 Para 294

…ture paid commercial assistance, a need for that assistance arising from a breach of duty of care must be established by the plaintiff: Smith v Alone [2017] NSWCA 287 at [73-77].…
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy
[2015] NSWCA 253

…si [2009] NSWCA 353 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Ryde City Council v Saleh [2004] NSWCA 219 Samco Pty v Wurth [2015] NSWCA 117 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182…
SampCo Pty Ltd v Wurth
[2015] NSWCA 117 Para 282

…As held by the Court of Appeal in Samco Pty v Wurth [2015] NSWCA 117 at [91] an assessment of past domestic services is to be made on a weekly basis and not an average over many weeks. Looking at a plaintiff's damages in terms of periods having regard to her medical condition is however permissible.…
White v Benjamin
[2015] NSWCA 75 Para 281

…on to children or grandchildren to be provided for at least six hours per week for at least six consecutive months. As stated above, White v Benjamin [2015] NSWCA 75 seems to hold that s 15(3) and s 15B(3) are separate requirements for the two different types of care.…
Jackson v McDonald's Australia Ltd
[2014] NSWCA 162

…v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Miller v Galderisi [2009] NSWCA 353 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd…
Wallace v Kam
[2013] HCA 19

…Wurth [2015] NSWCA 117 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75 Whitton v Dexus Funds Management Ltd [2019] NSWDC 579 Category: Principal judgment Parties: Shirley‑Ann Baker (Plain…
Strong v Woolworths Ltd
[2012] HCA 5

…ty Council v Saleh [2004] NSWCA 219 Samco Pty v Wurth [2015] NSWCA 117 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75 Whitton v Dexus Funds Management Ltd [2019] NSWDC 579 Category: Prin…
Miller v Galderisi
[2009] NSWCA 353 Para 295

…whether commercial care was “necessary” (at [73]) and whether commercial care would be “needed in the future”: at [75]. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal held that there was no evidence in that case that commercial care was necessary. The Court of Appeal in Galderisi at [18] referred to “a…
Neindorf v Junkovic
[2005] HCA 75

…onald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Miller v Galderisi [2009] NSWCA 353 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Ryde City Council v Saleh [2004] NSWCA 219 Samco Pty v Wurth [2015] NSWCA 11…
Ryde City Council v Saleh
[2004] NSWCA 219

…05] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Ryde City Council v Saleh [2004] NSWCA 219 Samco Pty v Wurth [2015] NSWCA 117 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CL…
Burwood Council v Byrnes
[2002] NSWCA 343

…v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of the City of Sydney v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald’s Australia Ltd [2014]…
Brodie v Singleton Shire Council
[2001] HCA 29

…Ltd v Al Kammessy [2018] NSWCA 176 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of the City of Sydney v Bishop [2019] NSWCA 157 Gh…
Australian Safeway Stores Pty Ltd v Zaluzna
[1987] HCA 7

…ulation 2011 (NSW) Cases Cited: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of…

Legislation cited in this decision · 5

Civil Liability Act 2002 (TAS)
15, 15B, 16 4 mentions (from Para 1)
Evidence Act 1995 (Cth)
136 2 mentions (from Para 101)
Interpretation Act 1987 (NSW)
1 mention
Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)
1 mention
Motor Accidents Compensation Act 1999 (NSW)
1 mention

Medium Neutral Citation:	Baker v Bunnings Group Limited [2020] NSWDC 310
Hearing dates:	4-8 May 2020; 12 May 2020; 21 May 2020
Date of orders:	18 June 2020
Decision date:	18 June 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed. (3) Liberty to any party to make an application within 14 days to vary order (2) above. (4) The exhibits are to be retained for 28 days.
Catchwords:	Torts – negligence – Civil Liability Act claim – plaintiff falls on edge of kerb of raised concrete island in carpark of store operated by the defendant – whether defendant store operator breached a duty of care owed to the plaintiff – whether warning was required of kerb – whether some other delineation of kerb required – whether the passage over the island should have been prevented by ropes or barriers – degree of loss of the plaintiff – quantum of domestic assistance to be awarded to the plaintiff
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 15, 15B and 16 Civil Liability (Non-economic Loss) Amendment Order 2019 Evidence Act 1995 (NSW), s 136 Work Health & Safety Act 2011 (NSW) Work Health & Safety Regulation 2011 (NSW)
Cases Cited:	Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of the City of Sydney v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Miller v Galderisi [2009] NSWCA 353 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Ryde City Council v Saleh [2004] NSWCA 219 Samco Pty v Wurth [2015] NSWCA 117 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75 Whitton v Dexus Funds Management Ltd [2019] NSWDC 579
Category:	Principal judgment
Parties:	Shirley‑Ann Baker (Plaintiff) Bunnings Group Limited (Defendant)
Representation:	Counsel: E G Romaniuk SC and S J Roulstone (Plaintiff) G Jensen (Defendant) Solicitors: LHD Lawyers (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2018/00307583