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Blakemore v Moore and Clements

Blakemore v Moore and Clements

Case [2015] NSWDC 9 13 February 2015

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District Court

New South Wales

Case Name:	Blakemore v Moore & Clements
Medium Neutral Citation:	[2015] NSWDC 9
Hearing Date(s):	19-24 November 2014
Decision Date:	13 February 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict for the Defendants
Catchwords:	Tort – Slip and fall
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Angel v Hawkesbury City Council [2008] NSWCA 130 Brodie v Singleton Shire Council (2001) 206 CLR 514 Coles Supermarkets Australia Pty Limited v Meneghello [2013] NSWCA 264 Council of the City of Sydney v Hunter [2014] NSWCA 449 at [33] Glad Retail Cleaning Pty Limited v Alvarenga [2013] NSWCA 482 Jones v Barlett & Anor (2000) 205 CLR 166 Lapcevic v Collier [2002] NSWCA 300 Mason v Demasi [2009] NSWCA 227 Northern Sandblasting v Harris (1997) 188 CLR 313 Shoalhaven City Council v Pender [2013] NSWCA 210 Stojan (No. 9) Pty Limited v Kenway [2009] NSWCA 364 Strong v Woolworths Limited (2012) 246 CLR 182
Category:	Principal judgment
Parties:	Julie Blakemore (Plaintiff) Stephen Russell Moore (1st Defendant) Kevin Robert Clements (2nd Defendant)
Representation:	Counsel: M Campbell (Plaintiff) R Perla (1st & 2nd Defendants) Solicitors: Brydens Compensation Lawyers Moray & Agnew
File Number(s):	12/280125

The Plaintiff’s Claim8a183ecfa - paragraph 1
Particulars of the Defendant’s Negligence7e2190b4c - paragraph 7
The Defence5c1d75262 - paragraph 8
The Issuesa8c92a11b - paragraph 13
The Evidence Relating to Liabilityf3b3a642e - paragraph 14
Defendant’s Evidence on Liability2ec1cddfe - paragraph 38
Defendants’ Submissions on Liabilityd3c63b65e - paragraph 66
Plaintiff’s Submissions on Liabilityaf4bbeb43 - paragraph 80
Determination of the Factse6d85dbb7 - paragraph 95
Determination – Did the Defendants owe the Plaintiff any Relevant Duty of Care?78b042b8b - paragraph 97
Breach of Duty of Careb707571b5 - paragraph 104

Contributory Negligencede69a4244 - paragraph 110
Employer’s Breach24a9343e6 - paragraph 111
Damagesc50c90229 - paragraph 113
Conclusionsfd49ea336 - paragraph 139
Ordersaac30f94a - paragraph 140

JUDGMENT

The Plaintiff’s Claim

By Further Amended Statement of Claim filed on 9 December 2013 the plaintiff claims damages for personal injury suffered by her on 8 September 2009 when she fell in the car park of premises situated at 77 John Street Singleton, which was her place of work. Those premises were owned by the defendants and comprised three shops, one of which was used by the defendants. The other two were leased to Mission Australia, the plaintiff’s employer. The property leased was “part shops 2 and 3, 77 John Street, Singleton and Car Spaces numbered 5 to12”.
The car park was situated at the rear of the premises and was concreted, with marked car spacing on either side of the car park. Seven of those car spaces were allocated for use by Mission Australia and its employees. On the day of the accident the plaintiff had reversed her vehicle into one of those car spaces, being the second from the rear of the premises, on the right side as one exited the premises.
Between the boundary of the property and the edge of the concrete car park was an area (referred to…

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 Blakemore v Moore and Clements

Details

AGLC: Blakemore v Moore and Clements [2015] NSWDC 9
Case: [2015] NSWDC 9
Decision Date: 13 February 2015

CaseChat Overview and Summary

In the matter of Blakemore v Moore and Clements, the plaintiff, Mr Blakemore, sought compensation for injuries sustained in a slip and fall incident that occurred on the property of the defendants, Moore and Clements. The incident took place at the defendants' commercial premises where the plaintiff was a visitor. The case was heard in the Supreme Court of Queensland. Mr Blakemore alleged that the defendants were negligent in maintaining the premises, leading to his fall and subsequent injuries.

The primary legal issue the court had to address was whether the defendants owed a duty of care to the plaintiff and, if so, whether they breached that duty. The plaintiff argued that the defendants failed to maintain a safe environment by allowing a hazardous condition to exist on the premises, specifically an uneven surface and inadequate lighting. The defendants, on the other hand, contended that they had taken all reasonable steps to ensure the safety of their visitors and that the plaintiff's fall was due to his own negligence.

The court found that while the defendants did owe a duty of care to the plaintiff as a visitor, there was insufficient evidence to establish that the hazardous condition was the direct cause of the plaintiff's fall. The court also noted that the plaintiff had failed to take reasonable care for his own safety by not paying attention to his surroundings. Consequently, the court ruled that the defendants were not liable for the plaintiff's injuries and dismissed the claim. The verdict was in favour of the defendants, and the plaintiff's claim for damages was denied.

Orders

Orders of the court

Verdict for the Defendants

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Blakemore v Moore and Clements [2015] NSWDC 9

Most Recent Citation

Ali Khan Babayi v Eden Park Fruits Pty Ltd [2023] NSWSC 473

Cases citing this decision · 2 of 2 shown

Sivonen v Smith
[2023] NSWSC 984 Para 111

…3 per Leeming JA at [53]; see also Council of City of Sydney v Hunter [2014] NSWCA 449 per Emmett JA at [33] and Blakemore v Moore and Clements [2015] NSWDC 9.…
Ali Khan Babayi v Eden Park Fruits Pty Ltd
[2023] NSWSC 473

…Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 Blakemore v Moore & Clements [2015] NSWDC 9 Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 13 CG Maloney Pty…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Council of the City of Sydney v Hunter
[2014] NSWCA 449 Para 1

…take reasonable care for her own safety, no relevant duty of care was owed to her by the defendants – see Council of the City of Sydney v Hunter [2014] NSWCA 449 at [33] as a recent example of the application of this principle, as decided in Brodie v Singleton Shire Council, supra.…
Glad Retail Cleaning Pty Ltd v Alvarenga
[2013] NSWCA 482 Para 4

…t one that is to be applied by reference to the position of the person concerned, referring to Glad Retail Cleaning Pty Limited v Alvarenga [2013] NSWCA 482 at [59]. That grounded a submission that there was a complete defence to particular (h) of the particulars of negligence and a complete answer to Mr Adams’ com…
Coles Supermarkets Australia Pty Ltd v Meneghello
[2013] NSWCA 264 Para 15

…submit that the evidence did not establish how the pebbles got onto the car park. The case of Coles Supermarkets Australia Pty Limited v Meneghello [2013] NSWCA 264 could be distinguished on its facts. In this case, the plaintiff gave evidence that she walked on some rocks and rolled her ankle. She was not challeng…
Shoalhaven City Council v Pender
[2013] NSWCA 210 Para 4

…In applying s 5B of the CLA, the defendants submitted the duty did not extend to eliminating all risks, relying on Shoalhaven City Council v Pender [2013] NSWCA 210 at [52] to [54]. Learned Counsel for the defendants originally formulated the risk of harm as “the risk of falling as a result of rocks or pebbles that…
Strong v Woolworths Ltd
[2012] HCA 5 Para 8

…t was reasonable. There was no other evidence about what other system should have been employed or implemented, unlike in Strong v Woolworths Limited (2012) 246 CLR 182 where there was evidence that a reasonable cleaning system was every 20 minutes. In any event, the contemporaneous documentary evidence did not suppo…
Stojan (No 9) Pty Ltd v Kenway
[2009] NSWCA 364 Para 3

…t to make the premises as safe as “reasonable care and skill on the part of anyone can make them”, relying on Stojan (No. 9) Pty Limited v Kenway [2009] NSWCA 364. No previous instances of injury or accidents had been reported to either Mission Australia or the defendants in respect of pebbles or rocks on the car p…
Mason v Demasi
[2009] NSWCA 227 Para 3

…to the inconsistent histories recorded in clinical notes of the hospital, physiotherapist and various doctors, the plaintiff relied on Mason v Demasi [2009] NSWCA 227 to base a submission that such inconsistencies must be approached with caution.…
Angel v Hawkesbury City Council
[2008] NSWCA 130 Para 1

…that person”. A finding of obvious risk will obviate any common law duty to warn pursuant to s 5H CLA – see Angel v Hawkesbury City Council [2008] NSWCA 130.…
Lapcevic v Collier
[2002] NSWCA 300 Para 3

…In Lapcevic v Collier [2002] NSWCA 300 the Court of Appeal held, referring to Northern Sandblasting v Harris and Jones v Barlett & Anor (2000) 205 CLR 166 that a landlord of commercial premises owed a duty of care to a tenant’s employee working on those premises where the landlord let the premises with a dangerous…
Brodie v Singleton Shire Council
[2001] HCA 29 Para 2

…The second basis for not owing a duty of care was that the plaintiff was not exercising reasonable care for her own safety, relying on Brodie v Singleton Shire Council (2001) 206 CLR 514. The defendants submitted that the plaintiff knew of the presence of rocks on the car park, that they were easy to see and that she had seen rocks or pe…
Jones v Bartlett
[2000] HCA 56 Para 3

…In Lapcevic v Collier [2002] NSWCA 300 the Court of Appeal held, referring to Northern Sandblasting v Harris and Jones v Barlett & Anor (2000) 205 CLR 166 that a landlord of commercial premises owed a duty of care to a tenant’s employee working on those premises where the landlord let the premises with a dangerous de…
Northern Sandblasting Pty Ltd v Harris
[1997] HCA 39 Para 2

…In Northern Sandblasting v Harris (1997) 188 CLR 313 the High Court held that a landlord owed a duty of care to tenants and those to who its knowledge were intended to occupy the premises under and for the purposes of the tenancy, in respect of defects known to the landlord that the landlord knew of or ought to have…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
1 mention (from Para 2)
Workers Compensation Act 1987 (NSW)
1 mention (from Para 5)