Balpar Pty Ltd v Hamrol

[2007] NSWCA 189

NEW SOUTH WALES COURT OF APPEAL

CITATION:      BALPAR PTY LTD v HAMROL [2007]  NSWCA 189

FILE NUMBER(S):
40451/2006

HEARING DATE(S):            25/07/2007

JUDGMENT DATE: 25 July 2007

PARTIES:
A: Balpar Pty Limited t/as The Carrington Hotel Katoomba
R: Peter Edward Hamrol

JUDGMENT OF:      Giles JA McColl JA Handley AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 4872/2004

LOWER COURT JUDICIAL OFFICER:     Quirk DCJ

LOWER COURT DATE OF DECISION:    23/06/2006

COUNSEL:
A: J. Sleight and C. Mulvey
R: L.T. Grey

SOLICITORS:
A: Boyd-Boland Law
R: McClellands

CATCHWORDS:
NEGLIGENCE - Occupier's Liability - no question of principle.

LEGISLATION CITED:

CASES CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40451/06

GILES JA
McCOLL JA
HANDLEY AJA

WEDNESDAY 25 JULY 2007

BALPAR PTY LIMITED Trading as THE CARRINGTON HOTEL, KATOOMBA v PETER EDWARD HAMROL

Judgment

1. HANDLEY AJA:  This is an appeal by the defendant from the judgment of her Honour Quirk DCJ delivered on 23 June 2006.  Her Honour’s judgment is clear and well-reasoned after being reserved overnight at the conclusion of counsels’ addresses.

2. It was an occupier’s liability case and the appeal is confined to the question of liability.

3. The plaintiff was engaged as an owner driver of a truck in the delivery of goods to the Carrington Hotel at Katoomba.  He had to push a loaded trolley weighing some twenty-five kilos with cartons weighing about 135 kilos up a ramp to a cellar door at the hotel. 

4. The ramp, which was described by the Judge as makeshift, had been constructed by the appellant’s cellarman from a CHEP pallet propped up on a mound of earth against the cellar door, to which he later screwed a sheet of plywood.  The ramp was exposed to the weather and would become wet if it rained.  It was about two metres long and had a slope of five and a half degrees from the horizontal.

5. The principal issue on liability at the trial was the existence of a breach of the occupier’s duty of care to entrants such as the plaintiff.

6. On the day in question the plaintiff had completed seven deliveries to the cellar without mishap.  When he emerged from the cellar door at a walking pace after the seventh delivery to return to his truck for the next load, he slipped at the top of the ramp and fell heavily on his buttocks. 

7. He was wearing hiking boots with rubber soles and the judge found that they were not in bad condition.  The plywood had not been painted or treated with an abrasive coating.  It had been raining for about twenty-four hours immediately before the accident.  There was lay evidence from Mr Linstid, the appellant’s cellarman, and from the plaintiff’s son, which the judge accepted, that the ramp became slippery when wet.  The plywood cover had been in place for about ten months before the accident. 

8. There was expert evidence from Dr Olsen, who was qualified for the plaintiff, and Dr…