Dunn v Star City Pty Limited

The appellant, Ms Dunn, appealed to the Court of Appeal of New South Wales against a decision of Naughton DCJ who had dismissed her claim in negligence against the respondent, Star City Pty Limited. Ms Dunn alleged that she had suffered injury due to a hidden danger on the respondent's premises, specifically a mat in the foyer which was obscured by signage and a structural column.

The primary legal issues before the Court of Appeal were whether the respondent had breached its duty of care to the appellant by failing to adequately warn of or remove the mats, and whether the appellant had been contributorily negligent. The court was also required to consider whether an inference could be drawn against the respondent under the principles of *Jones v Dunkel* due to its failure to call a witness who could have provided an explanation for the placement of the mats.

The Court of Appeal found that the primary judge had erred in his assessment of liability. The court reasoned that the respondent ought to have anticipated the risk posed by the mats, particularly given the appellant's pre-existing susceptibility to falls and the visual distractions and obscuring elements within the foyer. The court applied principles of negligence, considering the magnitude of the risk and the probability of its occurrence, and concluded that the respondent had failed to take reasonable precautions. The court also found that the *Jones v Dunkel* inference was applicable, as the respondent had not provided an explanation for the placement of the mats.

The Court of Appeal allowed the appeal, set aside the judgment of the District Court, and entered judgment for the appellant on the issue of liability. The proceedings were remitted to the District Court for the assessment of damages, and the respondent was ordered to pay the appellant's costs.