Irena Alat v Franklins Pty Ltd

District Court

New South Wales

Medium Neutral Citation:	Irena Alat v Franklins PTY LTD [2012] NSWDC 104
Hearing dates:	26, 27 July 2011 and 12, 19 August 2011
Decision date:	20 April 2012
Before:	Letherbarrow SC DCJ
Decision:	Verdict and judgment for the plaintiff
Catchwords:	TORTS - fall on spillage in supermarket - negligence - duty of care - breach of duty - causation of damage - contributory negligence - assessment of damages
Legislation Cited:	Part 29 Rule 29.10 of the Uniform Civil Procedure Rules (2005), s5B, s5D, s5R, s12, s15 of the Civil Liability Act (2002)
Cases Cited:	Wyong v Shirt [1980] HCA 12,Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241, Shoey's Pty Ltd v Allan (1991) Aust torts Reports 81-104, Waverly Council v Ferriera [2005] NSWCA 418, Stretenovic v Reed [2009] NSWCA 280, Council of the City of Greater Taree v Wells [2010] NSWCA 147, Woolworths Ltd v Strong [2010] NSWCA 282, Strong v Woolworths [2012] HCA 5
Category:	Principal judgment
Parties:	Plaintiff: IRENA ALAT Defendant: FRANKLINS PTY LTD
Representation:	Plaintiff: Mr. J Rowe Defendant: Mr Maconachie QC Mr D. Lloyd Plaintiff: Turner Freeman Defendant: Colin Briggers & Paisley
File Number(s):	2010/313422

Judgment

1. In this matter the plaintiff seeks damages for personal injuries which she sustained on Friday, 11 April 2008, as a result of slipping on some thickened cream which had been spilt on the floor of the defendant's supermarket premises located at Liverpool Plaza, Liverpool.

1. The case for the plaintiff was presented over two days, being 26 and 27 July last, at the conclusion of which Mr Maconachie QC, senior counsel for the defendant, moved the court for judgment in favour of his client pursuant to Part 29 Rule 29.10 of the Uniform Civil Procedure Rules, 2005, "on the ground that, on the evidence given, a judgment for the (plaintiff) could not be supported".

1. Considerable argument thereafter ensued with reference to s 5B and 5D of the Civil Liability Act 2002 (the "CLA"). I was referred to numerous authorities and provided with detailed written submissions by Mr Maconachie QC raising, inter alia, the correct interpretation of s 5D in light of the Court of Appeal's decision in Woolworths Ltd v Strong [2010] NSWCA 282 from which Mr Maconachie QC informed me the High Court had granted special leave to appeal. It was not suggested by either party that my decision on the Part 29 Rule 29.10 application should await the High Court's decision. In fact, Mr. Maconachie QC submitted that whatever such decision was, it could not affect such application.

1. Mr Rowe, counsel for the plaintiff, also referred me to numerous authorities concerning slip and fall accidents in supermarkets going back over approximately the last twenty years.

1. As there was only one further hearing day available before I had to recommence a part heard matter, with both counsels' consent, I reserved my decision on the part 29 Rule 29.10 application, indicating that when I…