Devic v AMP Capital Investors Limited

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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 2022
Date 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)
S McCarthy (Defendant)

Solicitors: Brydens Lawyers (Plaintiff)
McCabe Curwood (Defendant)
File Number(s): 2020/249647
Publication restriction: N/A

Judgment

  1. 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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Details
Case
[2022] NSWDC 371
Decision Date

CaseChat Overview and Summary

The plaintiff in this case, Mr. Devic, brought an action against AMP Capital Investors Limited, the defendant, seeking damages for injuries sustained when he fell off the wings of a kerb ramp. The dispute came before the court to determine whether the defendant owed a duty of care to the plaintiff and whether any such duty was breached, leading to the injuries. The central legal issues revolved around the principles of occupiers’ liability, specifically whether the defendant had breached its duty of care by failing to ensure the safety of the kerb ramp. The court also had to determine if the risk of falling off the wings of the kerb ramp was foreseeable and whether the risk was obvious, potentially absolving the defendant of liability under the Civil Liability Act.

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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