New South Wales
Court of Appeal
CITATION: C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 10 February 2006
JUDGMENT DATE:
29 May 2006JUDGMENT OF: Santow JA at 1; McColl JA at 167; Bryson JA at 169 DECISION: See paragraph [166] CATCHWORDS: TORT – Woman falls and injures herself on recently polished floor where polish not visible – Whether hotel and cleaning company liable – apportionment of liability. - DAMAGES – Whether there was an “obvious risk” and if so what follows for the inadvertent plaintiff - In what way, if at all has the meaning of “obvious risk: and its consequences at general law been altered by the Civil Liability Act 2000 (NSW). - PRACTICE AND PROCEDURE – Did the trial judge err in the exercise of his discretion regarding the awarding of costs – Should a Bullock order have been made. LEGISLATION CITED: Civil Liability Act 2000 (NSW) s5F; s5G; s5H
District Court Rules Pt 39A r26; r25
Law Reform (Miscellaneous Provisions) Act 1965 s9
Practice Note 42
Supreme Court Rules Pt 52A r24CASES CITED: Annikin v Sierra (2004) 79 ALJR 452
Bouras v Grandelis [2005] NSWCA 463
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Diamond v Simpson (No 4) [2004] NSWCA 57
James Hardie & Co Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679
Joslyn v Berryman (2003) 214 CLR 552
Liftronic Pty Ltd v Unver (2001) 75 ALJR 867
Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43
Neindorf v Junkovic (2005) 80 ALJR 341
Phillis v Daly (1988) 15 NSWLR 65
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 50 ALJR 492
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Temora Shire Council v Stein [2004] NSWCA 236
Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 904
Vairy v Wyong Shire Council (2005) 80 ALJR 1
Wyong Shire Council v Shirt (1980) 146 CLR 40PARTIES: C G MALONEY PTY LTD trading as BONDI HOTEL (Appellant)
Diana HUTTON-POTTS (First Respondent)
KIDGLOVES AUSTRALIA PTY LTD trading as P-JAYS CLEANING SERVICE (ACN 072 387 305) (Second Respondent)FILE NUMBER(S): CA 40197/05 COUNSEL: S G CAMPBELL SC/ A Bowen (Appellant)
K P REWELL SC/ S TORRINGTON (First Respondent)
J SEXTON SC (Second Respondent)SOLICITORS: Moray & Agnew (Appellant)
Thomas Julius Goudkamp of Stacks Goudkamp (First Respondent)
Lee & Lyons (Second Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 42/03 LOWER COURT JUDICIAL OFFICER: Graham DCJ LOWER COURT DATE OF DECISION: 22 February 2005, 25 February 2005
CA 40197/05
DC 42/0329 MAY 2006SANTOW JA
McCOLL JA
BRYSON JA
1 SANTOW JA:
- INTRODUCTION
A danger or risk may be relatively commonplace. But is it also an obvious risk? And what follows if…
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- Case
- [2006] NSWCA 136
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the trial judge erred in finding the defendants liable in negligence, the proper apportionment of liability between the hotel and the cleaning company, and whether the damages awarded were excessive, specifically in light of the provisions of the *Civil Liability Act 2000* (NSW) concerning obvious risks. The court also had to determine if the trial judge had erred in his exercise of discretion regarding costs, including whether a *Bullock* order should have been made.
The Court of Appeal allowed the appeal in part, primarily varying the quantum of damages awarded for hydrotherapy. The court found that while the defendants were liable, the reduction in damages for hydrotherapy was excessive. The court's reasoning involved an analysis of the duty of care owed by the hotel and the cleaning company, the foreseeability of the risk of slipping, and the application of the *Civil Liability Act 2000* (NSW) to the concept of obvious risks. The court ultimately varied the original orders to reflect a revised judgment for the plaintiff against both defendants, and also adjusted the amounts awarded on cross-claims between the defendants. The court also made specific orders regarding the costs of the appeal, with the appellant to pay a significant portion of the first respondent's costs.
Orders
Orders of the court
In the circumstances, I would propose orders as follows:
(1) (a) Appeal allowed, but only as to the reduction of damages for hydrotherapy from $45,495 to $15,000;
(b) Orders 1, 2 and 3 of Graham DCJ to be varied accordingly, so that there shall be judgment (i) for the plaintiff (first respondent) for $191,071.02 against the first and second defendants (appellant and second respondent); (ii) judgment for the second cross-claimant (second respondent) against the cross-defendant (appellant) to the second cross-claim in the amount of $152,856.81, and (iii) for the cross-claimant (appellant) against the cross defendant (second respondent) on the Amended Notice of first cross-claim in the amount of $38,214.20.
(2) Appellant to pay 80%, and second respondent 20%, of the costs of appeal of the first respondent and otherwise each is to bear their own costs of the appeal.
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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