Reported Decision:
6 DCLR (NSW) 178
District Court
CITATION: Irwin v Salvation Army (NSW) Property Trust & Anor [2007] NSWDC 266 HEARING DATE(S): 23 April 2007, 24 April 2007, 26 April 2007, 29 October 2007, 30 October 2007 and 31 October 2007; and written submissions on 17 November 2007, 28 November 2007, 30 November 2007, 11 December 2007 and 13 December 2007.
JUDGMENT DATE:
17 December 2007JURISDICTION: Civil JUDGMENT OF: Hungerford ADCJ DECISION: Verdict for plaintiff against first defendant in amount of $333,008.76; verdict for plaintiff against second defendant in amount of $255,615.65; verdict for the respective cross-defendants against the cross-claimants on the defendants' cross-claims; each party to bear its own costs of the cross-claims; and parties to be heard on costs of the action and form of orders. CATCHWORDS: NEGLIGENCE - BREACH OF STATUTORY DUTY - Personal Injury - Workplace accident - Slip and fall on wet tiled floor in kitchen of an aged care facility - Occupier's liability - Liability of an employer in performing contract to provide catering services - Whether occupational health and safety regulations gave rise to right of a personal civil action - Apportionment of fault as between occupier and employer - Effect of pre-existing injuries and ailments - Effect of likely non -work related matters - Modified damages against occupier to recognise proportionate fault of employer - Limitation of damages against employer to past and future economic loss - Assessment of damages LEGISLATION CITED: Civil Liability Act 2002,ss 15(3) and 16(2)
Civil Procedure Act 2005, ss 56 and 90
Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c)
Occupational Health and Safety Act 2000, ss 3, 32, 33 and 39A
Occupational Health and Safety Regulation 2001, cll 33 and 39
Uniform Civil Procedure Rules 2005, Pt 36 r 36.1
Workers Compensation Act 1987, ss 66,67, 151G, 151H, 151Z(1)(b) and 151Z(2)(c)CASES CITED: Australian Iron and Steel Pty Ltd v Ryan (1957) 97 CLR 89
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Czatyrko v Edith Cowan University [2005] HCA 14
Doe d Rochester (Bishop) v Bridges (1831) 1 B & Ad 847
Elliott v Bickerstaff (1999) 48 NSWLR 214
English v Rogers [2005] A Tort R 81-800
Hackshaw v Shaw (1984) 155 CLR 614
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
Lepore v State of New South Wales (2001) 52 NSWLR 420
Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
O'Connor v SP Bray Pty Ltd (1937) 56 CLR 464
O'Connor v Commissioner for Government Transport (1959) 100 CLR 225
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
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Details
- Case
- [2007] NSWDC 266
- Decision Date
CaseChat Overview and Summary
The plaintiff, Irwin, commenced proceedings against the Salvation Army (NSW) Property Trust (first defendant) and the Salvation Army (Australia) Aged Care Services (second defendant) for injuries she sustained after slipping and falling on a wet tiled floor in the kitchen of an aged care facility. The facility was operated by the second defendant under a contract with the first defendant. Irwin alleged that the first defendant was negligent in maintaining the kitchen floor, while the second defendant was negligent in its cleaning and maintenance processes. The primary dispute centred on the respective liabilities of the occupier and the employer, and whether the occupational health and safety regulations conferred a right to a personal civil action.
The court needed to determine the extent of the first defendant's liability for failing to maintain a safe environment, and whether the second defendant's liability was diminished due to its contractual obligations. It was also necessary to apportion fault between the parties and assess the impact of the plaintiff's pre-existing conditions on the damages. The court had to consider whether the employer's breach of statutory duty could give rise to a personal civil action, and how the plaintiff's pre-existing ailments and potential non-work related factors affected the assessment of damages.
The court found both defendants liable for negligence. The first defendant was held responsible for the unsafe condition of the floor, while the second defendant was found negligent in its cleaning and maintenance. The court held that the occupational health and safety regulations did not create a personal civil action, but the second defendant was still liable under common law principles. The court apportioned fault, reducing the first defendant's liability by 30% due to the second defendant's negligence. The court also considered the plaintiff's pre-existing conditions and other non-work related factors, adjusting the damages accordingly. The court awarded the plaintiff damages against the first defendant for $333,008.76 and against the second defendant for $255,615.65. The court also dismissed the defendants' cross-claims and ordered each party to bear its own costs for the cross-claims. The court reserved decisions on the costs of the action and the form of orders.
The court's orders included a verdict for the plaintiff against the first defendant for $333,008.76 and against the second defendant for $255,615.65. The court dismissed the defendants' cross-claims and ordered each party to bear its own costs for those claims. The court reserved decisions on the costs of the action and the form of orders, to be determined in subsequent hearings.
The court needed to determine the extent of the first defendant's liability for failing to maintain a safe environment, and whether the second defendant's liability was diminished due to its contractual obligations. It was also necessary to apportion fault between the parties and assess the impact of the plaintiff's pre-existing conditions on the damages. The court had to consider whether the employer's breach of statutory duty could give rise to a personal civil action, and how the plaintiff's pre-existing ailments and potential non-work related factors affected the assessment of damages.
The court found both defendants liable for negligence. The first defendant was held responsible for the unsafe condition of the floor, while the second defendant was found negligent in its cleaning and maintenance. The court held that the occupational health and safety regulations did not create a personal civil action, but the second defendant was still liable under common law principles. The court apportioned fault, reducing the first defendant's liability by 30% due to the second defendant's negligence. The court also considered the plaintiff's pre-existing conditions and other non-work related factors, adjusting the damages accordingly. The court awarded the plaintiff damages against the first defendant for $333,008.76 and against the second defendant for $255,615.65. The court also dismissed the defendants' cross-claims and ordered each party to bear its own costs for the cross-claims. The court reserved decisions on the costs of the action and the form of orders.
The court's orders included a verdict for the plaintiff against the first defendant for $333,008.76 and against the second defendant for $255,615.65. The court dismissed the defendants' cross-claims and ordered each party to bear its own costs for those claims. The court reserved decisions on the costs of the action and the form of orders, to be determined in subsequent hearings.
Orders
Orders of the court
Verdict for plaintiff against first defendant in amount of $333,008.76; verdict for plaintiff against second defendant in amount of $255,615.65; verdict for the respective cross-defendants against the cross-claimants on the defendants' cross-claims; each party to bear its own costs of the cross-claims; and parties to be heard on costs of the action and form of orders.
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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