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Furner v Jackson

Furner v Jackson

Case [2023] NSWSC 914 3 August 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Furner v Jackson [2023] NSWSC 914
Hearing dates: 25, 26, 27 July and 26, 27 September 2022
Date of orders: 3 August 2023
Decision date: 03 August 2023
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) I propose to enter the first, second and fourth defendants are to pay the plaintiff damages in the sum of $1,509,512, arising from an accident that occurred on 18 January 2020, once the calculations have been checked by the parties.
(2) The defendants are to pay the plaintiff’s costs.

Catchwords:
NEGLIGENCE – General principles – Duty of care – Foreseeability of risk – Causation – Personal injuries – Slip and fall – Occupier’s liability – Expert medical evidence – Liability established – Damages.

Legislation Cited:
Civil Liability Act 2002 (NSW) 5, 5B, 5C, 5D and 5E
Uniform Civil Procedure Rules 2005 (NSW) r 5

Cases Cited:
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v BouNajem (2009) 239 CLR 420; [2009] HCA 48
Cupac v Cannone [2015] NSWCA 114
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Manly Municipal Council v Skene [2002] NSWCA 385
Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42
Thornton v Sweeney [2011] NSWCA 244
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Krickovic v The Star Pty Ltd [2019] NSWDC 594
Wallace v Kam [2013] HCA 19, 250 CLR 375
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Woolworths Ltd v Strong [2010] NSWCA 282
Mouin Junior Dalati v Shereen Rifat Brown [2020] NSWSC 783
Sangha v Baxter [2009] NSWCA 78
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

Texts Cited:
Sir Richard Eggleston QC Evidence, Proof and Probability (Weidenfeld and Nicolson, 1978)

Category: Principal judgment
Parties: Kellie Furner (Plaintiff)
Alan James John Jackson (First Defendant)
Linda Kondouras (Second Defendant)
CK1 Realty Pty Ltd (Fourth Defendant)
Representation:
Counsel:

P. Khandar SC with E. Anderson (Plaintiff).
A. Ahmad and N. Hogan (Defendants).

Solicitors:
Brydens Lawyers Pty Limited (Plaintiff).
Holman Webb Lawyers (Defendants).

File Number(s): 2020/00227032-1

Contents

JUDGMENT

Background
The medical experts
The pleading framework
Background
Text Messages
Credibility of parties
The plaintiff’s submissions on her credibility
Use of medication
The reliability of Mr Furner
Liability Principles
Causation – the law
Prior neck pain
Contributory negligence
After the accident
Medical evidence
Diagnosis
Inconsistencies in presentation
Pre-existing injuries
Conclave evidence – Dr Lee and Ms Glancey
Quantum
Non-economic loss
Past-economic loss
Future earning capacity
Past loss of superannuation
Future loss of superannuation
Past out-of-pocket…

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.

Continue reading Furner v Jackson

Details

AGLC: Furner v Jackson [2023] NSWSC 914
Case: [2023] NSWSC 914
Decision Date: 03 August 2023

CaseChat Overview and Summary

The matter before the court involved a dispute between Furner, the plaintiff, and Jackson, the defendant, arising from an incident where Furner slipped and fell on a wet floor at Jackson’s premises, resulting in personal injuries. The case was heard in the District Court of New South Wales. Furner sought damages for the injuries sustained, claiming that Jackson, as the occupier of the premises, had failed in his duty of care to ensure the safety of visitors.

The primary legal issues for the court to decide were whether Jackson owed Furner a duty of care, whether that duty was breached by the wet floor condition, and if the breach caused Furner’s injuries. Additionally, the court had to consider the extent of Furner’s damages and whether expert medical evidence was required to substantiate the claimed injuries. The court examined the principles of negligence, including foreseeability of risk, causation, and the applicable standards of care expected from an occupier.

The court found that Jackson, as the occupier, owed Furner a duty of care to ensure the premises were reasonably safe for visitors. The wet floor condition was deemed a foreseeable risk that could result in injury, and the evidence demonstrated that Jackson had knowledge of the wet floor but failed to take adequate steps to mitigate the risk. The court accepted that the wet floor directly caused Furner’s fall and subsequent injuries, establishing a clear causal link. The court also found that Furner’s injuries were substantiated by medical evidence provided, and damages were assessed accordingly. The court ruled in favour of Furner, holding Jackson liable for negligence and awarded Furner damages for the injuries sustained.

Orders