Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Bunnings Group Ltd v Giudice [2018] NSWCA 144 Hearing dates: 22 June 2018 Decision date: 03 July 2018 Before: Leeming JA; White JA; Emmett AJA Decision: 1. Appeal allowed with costs.
2. Set aside orders 1 and 2 made on 3 November 2017, and in lieu thereof order that the proceedings be dismissed, with the plaintiff to pay the defendant’s costs.Catchwords: NEGLIGENCE – occupier’s liability – customer trips and falls in appellant’s premises while entering a children’s play area – play area had raised shock-absorbent surface – primary judge found failure to warn and failure to make surface of play area level with remainder of premises were breaches of duty which caused the injury – findings under ss 5B and 5D of Civil Liability Act 2002 (NSW) set aside – appeal allowed and judgment entered for appellant Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5H Cases Cited: Goode v Angland [2017] NSWCA 311
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361
New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] 1 AC 617
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Roads and Traffic Authority v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263
Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065
Sibraa v Brown [2012] NSWCA 328
Stenning v Sanig [2015] NSWCA 214
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12Texts Cited: Nil Category: Principal judgment Parties: Bunnings Group Ltd (Appellant)
Antonietta Giudice (Respondent)Representation: Counsel:
Solicitors:
G M Watson SC and I L Griscti (Appellant)
B D Dooley SC and P Clingan (Respondent)
Gilchrist Connell (Appellant)
Stephen Spinak Solicitors (Respondent)
File Number(s): 2017/361379 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Civil
- Citation:
- Nil
- Date of Decision:
- 03 November 2017
- Before:
- His Honour Judge Wilson DCJ SC
- File Number(s):
- 2016/310722
Judgment
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THE COURT: Bunnings Group Ltd appeals from a judgment against it in the amount of $179,600 in favour of Ms Antonietta Giudice, who was injured when she tripped and fell at a “Bunnings Warehouse” in Ashfield, occupied by the appellant, on 4 April 2016. The judgment amount includes a deduction for contributory negligence assessed at 20%. No challenge is made to the determination of contributory negligence, nor to any element of quantum. Instead, Bunnings maintains that the primary judge erred in finding any breach of duty, and erred in finding that there was causation.
Background
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Ms Giudice had attended the premises together with a friend and her grandson, who was almost four years old at the time. She had been there previously. The premises are a large enclosed space with displays of…
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- AGLC
- Bunnings Group Ltd v Giudice [2018] NSWCA 144
- Case
- [2018] NSWCA 144
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge erred in finding that Bunnings breached its duty of care to Ms Giudice under sections 5B and 5D of the *Civil Liability Act 2002* (NSW). Specifically, the appeal concerned whether the identified failures constituted a breach of duty, and whether such breaches were causative of Ms Giudice's fall and subsequent injuries.
The Court of Appeal found that the primary judge's findings were not supported by the evidence. It was held that the raised nature of the play area surface, which was designed to be shock-absorbent, was not of itself a dangerous feature requiring a warning. Furthermore, the court determined that the slight height difference between the main floor and the play area surface was not a condition that a reasonable occupier would have foreseen as posing an unreasonable risk of harm to a customer entering the area. Consequently, the court concluded that Bunnings had not breached its duty of care.
The appeal was allowed, and the orders of the primary judge were set aside. Judgment was entered for Bunnings Group Ltd, with Ms Giudice ordered to pay Bunnings' costs of both the appeal and the original proceedings.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside orders 1 and 2 made on 3 November 2017, and in lieu thereof order that the proceedings be dismissed, with the plaintiff to pay the defendant’s costs.
Background
Background to the litigation
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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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