Berkin v Franklins Ltd

DISTRICT COURT OF QUEENSLAND

[2000] QDC 442

CITATION:	Helen Pearl Berkin v. Franklins Ltd & Anor
PARTIES:	Helen Pearl BERKIN (Plaintiff) v. FRANKLINS LTD (Defendant) and KIRKVISTA PTY LTD (Third Party)
FILE NO/S:	Plaint No. 167 of 1998
DELIVERED ON:	29 September 2000
DELIVERED AT:	Maroochydore
HEARING DATE:	19 September 2000
JUDGE:	K S Dodds DCJ
ORDER:	There will be judgment for the plaintiff on the claims with costs to be assessed.  Damages have been agreed between the parties.
CATCHWORDS:	NEGLIGENCE – DANGEROUS PREMISES – OCCUPIER’S LIABILITY – pl slipped and fell at def’s supermarket – wh def had taken reasonable care to prevent injury to customers
COUNSEL:	M J Taylor for the plaintiff K A McGinness for the defendant
SOLICITORS:	Bradley & Bray for the plaintiff McInnes Wilson for the defendant

1. In this proceeding the plaintiff, an 83-year-old lady, has sued the defendants, the operators of a large fresh food and grocery market at the Big Top Shopping Centre Maroochydore, for damages for personal injury.  I will deal with the third party proceeding later.

1. The plaintiff slipped and fell in aisle six of the grocery section of the market at or about 10.30 am on Friday 26 January 1996.  She was in the market as a customer.  She broke her wrist and suffered bruising.  She said she was wearing ordinary court shoes and walking normally along the aisle looking for jelly crystals when her feet suddenly went forwards from under her.  She said she believed she slipped in water because afterwards the back of her dress was damp “in the hip and back part”, but was not stained.

1. The plaintiff at the time had some impairment to her vision.  She could not see to read but could see things and where she was walking.  She had on previous occasions when shopping in the market, obtained the assistance of a store employee to help her with her shopping.  She said however that by the time of the occasion she fell she had acquired a general knowledge of where items were in the grocery section and on the day in question, proceeded independently.

1. Because of the plaintiff’s impaired vision, she had been provided with a white cane or stick which could be broken into four parts connected by a continuous piece of elasticised material located inside the segments.  It was assembled by one part slipping into a sleeve on the adjoining part.  It was not tendered.  However, I saw it during the trial.  It was straight and appeared to be a little over one centimetre in diameter, uniform over its length.

1. The plaintiff in evidence said she did not know whether she had the stick with her on the day she fell but if she did it would have been folded and in her handbag.  She said she was not using it.  The defendant placed evidence before me from a woman who was shopping in the same aisle as the plaintiff when the plaintiff fell, a Ms Charmaine McKay.  According to…