Comitogianni v Sydney Flower Market - [2010] NSWDC 215

CITATION: Comitogianni v Sydney Flower Market and ors [2010] NSWDC 215

HEARING DATE(S): 17 - 24 May 2010; 4 June and 9 July 2010

JUDGMENT DATE:
1 October 2010

JURISDICTION: Civil

JUDGMENT OF: Phegan ADCJ

DECISION: (1) Verdict and judgment for the plaintiff against the first defendant in the amount of $50,893.70.
(2) Order that the first defendant pay the plaintiff’s costs in her claim against the first defendant as agreed or assessed.
(3) Verdict and judgment for the plaintiff against the second defendant in accordance with Consent Judgment filed on 23 July 2010 in the amount of $20,000.
(4) Order that the second defendant pay the plaintiff’s costs in her claim against the second defendant as agreed or assessed.
5) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the first defendant is limited to the sum of $30,893.70.
(6) Verdict and judgment for the plaintiff against the third defendant in the amount of $50,893.70.
(7) Order that the third defendant pay the plaintiff’s costs in her claim against the third defendant as agreed or assessed.
(8) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the third defendant is limited to the sum of $30,893.70.
(9) In the cross-claim between the first and third defendants, verdict and judgment by way of a complete indemnity in favour of the first defendant, including costs.
(10) In the cross-claim between the second and third defendants, enter a verdict and judgment in favour of the third defendant on the grounds that the cross-claim was abandoned upon settlement of the plaintiff’s claim against the second defendant. Costs as agreed or assessed are provisionally awarded to the third defendant but in making that order the withdrawal of the second defendant from the proceedings on the second day of the hearing is noted and, before this order is entered, submissions invited on costs.

CATCHWORDS: civil - slip and fall - obvious risk - contributory negligence - liability of occupiers and cleaners - indemnity/contribution - loss of business - damages for personal injury

LEGISLATION CITED: Civil Liability Act 2002
Law Reform(Miscellaneous Provisions) Act 1946

CASES CITED: Australian Safeway Stores P/L v Zaluzna (1987) 162 CLR 479
Baker v Gilbert et al [2003] NSWCCA 113
Jones v Dunkel (1959) 101 CLR 298
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
P & H Property Service P/L v Branigan [2008] NSWCCA 195

PARTIES: Georgette Comtogianni (Plaintiff)
Sydney Markets Limited t/as Sydney Flower Market (First Defendant)
Nati & Sons Pty Limited (Second Defendant)
Storm International Pty Limited (Third Defendant)

FILE NUMBER(S): 08/318896

COUNSEL: Mr M Gilbert (For the Plaintiff)
Mr W Reynolds (For the First Defendant)
Mr R Gambi (For the Second Defendant)
Mr S Kettle (For the Third Defendant)

SOLICITORS: Prominent Lawyers (For the Plaintiff)
Lee & Lyons Lawyers( For the First Defendant)
Gadens Lawyers (For the Second Defendant)
Moray &…

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.

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Details

Case: [2010] NSWDC 215
Decision Date: 1 October 2010

CaseChat Overview and Summary

Comitogianni v Sydney Flower Market is an action in the Supreme Court of New South Wales for damages arising from a slip and fall incident. The plaintiff, Comitogianni, claims to have slipped and injured her back while walking on a floor covered in sawdust in the Sydney Flower Market. The defendants are the market's occupiers, the cleaners who were responsible for cleaning the floor, and a third party who had an agreement to indemnify the occupiers. The plaintiff sought compensation for her injuries, loss of business, and other related costs. The defendants argued that the risk was obvious and that the plaintiff was contributorily negligent. They also claimed indemnity and contribution among themselves.

The court had to determine whether the defendants were liable for the plaintiff's injuries, whether the risk was obvious, and whether the plaintiff was contributorily negligent. The court also had to decide on the indemnity and contribution claims between the defendants. The court found that the occupiers and the cleaners were liable for the plaintiff's injuries, but the liability was reduced by the plaintiff's contributory negligence. The court held that the risk was not obvious and that the defendants were liable for failing to take reasonable care to prevent the accident. The court also found that the third party was liable to indemnify the occupiers and that the occupiers were entitled to contribution from the cleaners.

The court awarded the plaintiff damages for her injuries, loss of business, and other costs. The court ordered the occupiers and the cleaners to pay the plaintiff's costs. The court also ordered the third party to indemnify the occupiers and for the occupiers to contribute to the cleaners. The court limited the recovery of the judgment sum against the occupiers to the amount of the indemnity from the third party. The court also ordered the occupiers to indemnify the cleaners completely and dismissed the cross-claim between the second and third defendants.

The court's final orders included a verdict and judgment in favour of the plaintiff against the occupiers, cleaners, and the third party, with corresponding orders for costs. The court also ordered indemnity and contribution between the defendants, with specific limitations on the recovery of the judgment sum. The court provisionally awarded costs to the third defendant in the cross-claim but invited submissions on costs before entering the final order.

Orders

Orders of the court

(1) Verdict and judgment for the plaintiff against the first defendant in the amount of $50,893.70.

(2) Order that the first defendant pay the plaintiff’s costs in her claim against the first defendant as agreed or assessed.

(3) Verdict and judgment for the plaintiff against the second defendant in accordance with Consent Judgment filed on 23 July 2010 in the amount of $20,000.

(4) Order that the second defendant pay the plaintiff’s costs in her claim against the second defendant as agreed or assessed.

5) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the first defendant is limited to the sum of $30,893.70.

(6) Verdict and judgment for the plaintiff against the third defendant in the amount of $50,893.70.

(7) Order that the third defendant pay the plaintiff’s costs in her claim against the third defendant as agreed or assessed.

(8) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the third defendant is limited to the sum of $30,893.70.

(9) In the cross-claim between the first and third defendants, verdict and judgment by way of a complete indemnity in favour of the first defendant, including costs.

(10) In the cross-claim between the second and third defendants, enter a verdict and judgment in favour of the third defendant on the grounds that the cross-claim was abandoned upon settlement of the plaintiff’s claim against the second defendant. Costs as agreed or assessed are provisionally awarded to the third defendant but in making that order the withdrawal of the second defendant from the proceedings on the second day of the hearing is noted and, before this order is entered, submissions invited on costs.

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.

CITATION:	Comitogianni v Sydney Flower Market and ors [2010] NSWDC 215
HEARING DATE(S):	17 - 24 May 2010; 4 June and 9 July 2010
JUDGMENT DATE:	1 October 2010
JURISDICTION:	Civil
JUDGMENT OF:	Phegan ADCJ
DECISION:	(1) Verdict and judgment for the plaintiff against the first defendant in the amount of $50,893.70. (2) Order that the first defendant pay the plaintiff’s costs in her claim against the first defendant as agreed or assessed. (3) Verdict and judgment for the plaintiff against the second defendant in accordance with Consent Judgment filed on 23 July 2010 in the amount of $20,000. (4) Order that the second defendant pay the plaintiff’s costs in her claim against the second defendant as agreed or assessed. 5) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the first defendant is limited to the sum of $30,893.70. (6) Verdict and judgment for the plaintiff against the third defendant in the amount of $50,893.70. (7) Order that the third defendant pay the plaintiff’s costs in her claim against the third defendant as agreed or assessed. (8) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the third defendant is limited to the sum of $30,893.70. (9) In the cross-claim between the first and third defendants, verdict and judgment by way of a complete indemnity in favour of the first defendant, including costs. (10) In the cross-claim between the second and third defendants, enter a verdict and judgment in favour of the third defendant on the grounds that the cross-claim was abandoned upon settlement of the plaintiff’s claim against the second defendant. Costs as agreed or assessed are provisionally awarded to the third defendant but in making that order the withdrawal of the second defendant from the proceedings on the second day of the hearing is noted and, before this order is entered, submissions invited on costs.
CATCHWORDS:	civil - slip and fall - obvious risk - contributory negligence - liability of occupiers and cleaners - indemnity/contribution - loss of business - damages for personal injury
LEGISLATION CITED:	Civil Liability Act 2002 Law Reform(Miscellaneous Provisions) Act 1946
CASES CITED:	Australian Safeway Stores P/L v Zaluzna (1987) 162 CLR 479 Baker v Gilbert et al [2003] NSWCCA 113 Jones v Dunkel (1959) 101 CLR 298 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 P & H Property Service P/L v Branigan [2008] NSWCCA 195
PARTIES:	Georgette Comtogianni (Plaintiff) Sydney Markets Limited t/as Sydney Flower Market (First Defendant) Nati & Sons Pty Limited (Second Defendant) Storm International Pty Limited (Third Defendant)
FILE NUMBER(S):	08/318896
COUNSEL:	Mr M Gilbert (For the Plaintiff) Mr W Reynolds (For the First Defendant) Mr R Gambi (For the Second Defendant) Mr S Kettle (For the Third Defendant)
SOLICITORS:	Prominent Lawyers (For the Plaintiff) Lee & Lyons Lawyers( For the First Defendant) Gadens Lawyers (For the Second Defendant) Moray &…