David Jones Ltd v Bates

[2001] NSWCA 233

CITATION:	David Jones Ltd v Bates [2001] NSWCA 233
FILE NUMBER(S):	CA 40659/00
HEARING DATE(S):	27/06/01
JUDGMENT DATE:	20 July 2001
PARTIES :	David Jones Limited (Appellant) Frances Alvonia Bates (Respondent)
JUDGMENT OF:	Heydon JA at 1; Davies AJA at 2; Young CJ in Eq at 28

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3701/98
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	W Kearns SC and D O'Dowd (Appellant) P Semmler QC and L Locke (Respondent)
SOLICITORS:	Tillyard & Callanan (Appellant) Velleley & Associates (Respondent)
CATCHWORDS:	Torts- Negligence- Plaintiff slipped on floor at junction between carpet and timber surface- Whether negligence- Held No. (ND)
CASES CITED:	Brown v Target Australia Pty Ltd (1984) 37 SASR 145 Dailly v Spot-On Investments Pty Ltd (1995) Aust Torts Rep 81-363 Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 75 ALJR 992 Jones v Bartlett (2000) 75 ALJR 1 Littler v Liverpool Corporation [1968] 2 All ER 343 Phillis v Daly (1988) 15 NSWLR 65 Rasic v Cruz [2000] NSWCA 66 Stocks v Baldwin (1996) 24 MVR 416 Turner v South Australia (1982) 56 ALJR 839 Ward v Tesco Stores Ltd [1976] 1 WLR 810 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Appeal allowed.

CA 40659 of 2000
DC 3701 of 1998

HEYDON JA
DAVIES AJA

YOUNG CJ in Eq

FRIDAY 20 JULY 2001

DAVID JONES LIMITED v BATES

JUDGMENT

1    HEYDON JA: I agree with paragraphs [2]-[14] and [16] to [26] of Davies AJA’s reasons for judgment, and with Young CJ in Eq.

2    DAVIES AJA: I agree with the reasons for judgment prepared by Young CJ in Eq but would add a few words of my own.

3    The crux of the evidence of Dr B N Emerson, an expert called on behalf of Frances Alvonia Bates, the plaintiff below, read as follows:-

"It is apparent the Plaintiff slipped as she stepped particularly at heel strike from a highly textured carpet surface with a resilient soft tread, to a hard, polished, smooth, timber surface which was totally untextured. The Plaintiff had become adjusted to walking on the carpet and did not necessarily observe she was stepping from the carpet onto the highly polished timber floor. It is further evident the Plaintiff would have been reasonably expected to be aroused by the various displays surrounding her particularly of the dresses on the mannequins in that department.
The display is specifically designed to attract the attention of the customers walking by. Hence it is not unreasonable or unlikely that the Plaintiff would be so preoccupied as to not be particularly looking at the ground and therefore while still assuming she was walking on highly stable carpet, stepped onto a less stable surface and hence she slipped and sustained injury.
The Plaintiff's heel clearly slipped on heel strike, as is the normal mechanism of this type of slip, whereby she fell heavily to the ground. The Plaintiff had felt confident in her surroundings and had…