Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Indigo Mist Pty Limited v Palmer [2012] NSWCA 239 Hearing dates: 11 May 2012 Decision date: 09 August 2012 Before: Beazley JA at [1]
Macfarlan JA at [5]
Hoeben JA at [10]Decision: (1)The appeal by Indigo Mist Pty Ltd and Robert Geammal is dismissed.
(2)The cross-appeal by Paul Kelly Design Pty Ltd is dismissed.
(3)Indigo Mist Pty Ltd, Robert Geammal and Paul Kelly Design Pty Ltd are to pay Ms Palmer's costs of this appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: Tort - negligence - patron slipping on internal stairs in hotel - liability of occupiers and architect - foreseeability of risk by occupiers and architect - whether breach of duty - Civil Liability Act 2002 - what response was required by occupiers and architect to foreseeable risk of injury - causation - notice of contention - whether respondent entitled to rely on notice of contention - apportionment of liability between occupiers and architect - contributory negligence. Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5O Cases Cited: Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335; 70 NSWLR 151
Florida Hotels Pty Ltd v Mayo [1965] HCA 26; 113 CLR 588
Hamilton v Nuroof (WA) Pty Ltd (1956) HCA 42; 96 CLR 18
Joslyn v Berryman & Anor [2003] HCA 34; 214 CLR 552
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Laresu Pty Ltd v Clark [2010] NSWCA 180
Mobbs v Kain [2009] NSWCA 301
Neill v NSW Fresh Foods and Ice Pty Ltd (1963) HCA 4; 108 CLR 362
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330
Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184
Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104
State of Victoria v Bryar and Anor (1970) 44 ALJR 174
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; 86 ALJR 267
Tabet v Gett [2010] HCA 12; 240 CLR 537
Varga v Galea [2011] NSWCA 76
Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74
Water Board v Moustakas [1988]…
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- Case
- [2012] NSWCA 239
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the occupiers and the architect had breached their respective duties of care to Ms Palmer, and if so, whether that breach caused her injuries. The Court was required to consider the foreseeability of the risk of slipping on the stairs and the adequacy of the steps taken by the occupiers and the architect to mitigate that risk, in light of the *Civil Liability Act 2002*. The Court also had to determine the appropriate apportionment of liability between the defendants and consider whether Ms Palmer was contributorily negligent.
The Court of Appeal upheld the primary judge's findings of negligence against both the occupiers and the architect. The Court reasoned that the risk of a patron slipping on the internal stairs was foreseeable, and that neither the occupiers nor the architect had taken reasonable precautions to prevent such an occurrence. The occupiers' failure to provide adequate warning or to address the slippery nature of the stairs, and the architect's design which did not adequately account for the risk of slipping, were found to be breaches of duty. The Court found that these breaches caused Ms Palmer's injuries and dismissed the appeals and cross-appeal, ordering the appellants to pay Ms Palmer's costs.
Orders
Orders of the court
(1)The appeal by Indigo Mist Pty Ltd and Robert Geammal is dismissed.
(2)The cross-appeal by Paul Kelly Design Pty Ltd is dismissed.
(3)Indigo Mist Pty Ltd, Robert Geammal and Paul Kelly Design Pty Ltd are to pay Ms Palmer's costs of this appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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