District Court
New South Wales
Medium Neutral Citation: Devic v AMP Capital Investors Limited [2022] NSWDC 371 Hearing dates: 21 July 2021
22 July 2021
23 July 2021
25 August 2021
2 September 2021
11 March 2022Date of orders: 26 August 2022 Decision date: 26 August 2022 Jurisdiction: Civil Before: Weinstein SC DCJ Decision: (1) Verdict and judgment for the defendant;
(2) The exhibits are to be returned;
(3) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;
(4) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.
Catchwords: Occupiers’ liability – breach of duty of care – fall off wings of kerb ramp – foreseeable risk – obvious risk – damages
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Angel v Hawkesbury City Council [2008] NSWCA 130
Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Brodie v Singleton Shire Council; Ghantous v
Clifton & Ors v Lewis [2012] NSWCA 229
Coleman v Barrett [2004] NSWCA 27
Coles Supermarkets Australia Pty Limited v Bridge [2018] NSWCA
Council of the City of Sydney v Bishop [2019] NSWCA 157
Cupac v Cannone [2015] NSWCA 114
Dell v Dalton (1991) 23 NSWLR 528
Goode v Angland [2017] NSWCA 311
Hackshaw v Shaw (1984) 155 CLR 614
Hall v State of New South Wales [2014] NSWCA 154
Hawkesbury City Council (2001) 206 CLR 512
Hawkesbury Sports Council v Martin [2019] NSWCA 76
Herne Investments (NSW) Pty Limited v Don Watson Pty Limited [2016] NSWCA 72
Jaber v Rockdale Council [2008] NSWCA 98
Jones v Bartlett (2000) 205 CLR 166
Lloyd v Thornbury [2019] NSWCA 154
Majkic v Bonanno [2008] NSWCA 253
Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254
Moran v Nominal Defendant [2008] NSWSC 804
Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
Schultz v McCormack [2015] NSWCA
Southgate v Waterford (1990) 21 NSWLR 427
State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3
Strong v Woolworths Ltd [2012] HCA 5
Swain v Waverley Municipal Council (2005) 220 CLR 517
Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Category: Principal judgment Parties: Jelena Devic (Plaintiff)
AMP Capital Investors Limited (Defendant)Representation: Counsel: M Campbell (Plaintiff)
Solicitors: Brydens Lawyers (Plaintiff)
S McCarthy (Defendant)
McCabe Curwood (Defendant)
File Number(s): 2020/249647 Publication restriction: N/A
Judgment
-
Jelena Devic brings a claim for damages for personal injury as a result of a fall sustained on 17 December 2019. On that date, the plaintiff attended the defendant AMP Capital Investors Limited’s premises known as the Casula Mall Shopping Centre (the…
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- Case
- [2022] NSWDC 371
- Decision Date
CaseChat Overview and Summary
The court examined the relevant statutory framework and case law to assess the defendant’s duty of care. It considered the foreseeability of the risk and whether reasonable steps were taken to mitigate it. The court found that the risk of injury from falling off the wings of the kerb ramp was indeed foreseeable. However, it concluded that the risk was also obvious, given the design and placement of the kerb ramp. The court held that an obvious risk does not necessarily constitute a breach of duty if the occupier has taken reasonable steps to warn of the risk. Here, it was determined that adequate warning signs were in place, and the plaintiff had failed to take reasonable care for his own safety by not paying attention to the warning signs.
The court ruled that the defendant had not breached its duty of care. It found that the plaintiff's injuries resulted from his failure to heed the warning signs, rather than from any deficiency in the defendant's actions. Consequently, the court dismissed the plaintiff's claim, entering a verdict and judgment in favour of the defendant. Additionally, the court ordered that the plaintiff pay the defendant's costs of the proceedings on the ordinary basis unless a party could demonstrate an entitlement to a different costs order. The exhibits were to be returned, and the court reserved the right to make further orders if necessary.
Orders
Orders of the court
(1) Verdict and judgment for the defendant;
(2) The exhibits are to be returned;
(3) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;
(4) Liberty to apply on seven (7) days notice if further or other orders are required, including as to 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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