Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Hearing dates: 3, 4 February 2014 Decision date: 26 May 2014 Before: McColl JA at [1]; Barrett JA at [46]; Ward JA at [181]. Decision: 1. Appeal dismissed.
2. That the appellant pay the respondents' costs of the appeal.
3. Cross-appeal allowed in part.
4. Set aside orders 3 and 5 made by the District Court on 13 December 2012 and order in lieu thereof that the second cross-claim be dismissed.
5. That the first respondent (second cross-respondent) pay the costs of the second respondent (cross-appellant) of the cross-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: TORTS - negligence - slip and fall at retail premises - floor recently mopped - mopping not conducted so as to leave dry passageway - no findings by primary judge concerning duty of care and standard of care - such findings essential - appeal court able to make the findings - whether breach of duty of care - if breach, whether it was causative of the damage suffered - contributory negligence - assessment of damages - respective responsibilities of occupier, cleaning contractor and the contractor's insurer - construction of cleaning contract and insurance contract Legislation Cited: Civil Liability Act 2002 (NSW)
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Benmax v Austin Motor Co Ltd [1955] AC 370
Bradshaw v McEwans Pty Ltd (HCA, unreported, 27 April 1951):
Cherry v Jaymardo Pty Ltd [1998] NSWCA 57
Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264
Dell v Dalton (1991) 23 NSWLR 528
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Evans v Evans [2011] NSWCA 92
Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418
Francis v Lewis [2003] NSWCA 152
Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408
Luxton v Vines [1952] HCA 19; 85 CLR 352
Marien v Gardiner [2013] NSWCA 396
Masterton Homes Pty Ltd v Palm Assets Pty Ltd…
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- Case
- [2014] NSWCA 162
- Decision Date
CaseChat Overview and Summary
The central legal issues before the appellate court were whether the primary judge had made essential findings regarding the duty of care owed by the occupier and the cleaning contractor, and the applicable standard of care. The court also had to determine if there was a breach of that duty of care, and if so, whether such a breach caused the damage suffered by the appellant. Further issues included the assessment of contributory negligence and damages, as well as the respective responsibilities of the occupier, the cleaning contractor, and the contractor's insurer, particularly in light of the cleaning and insurance contracts.
The appellate court found that the primary judge's findings on duty and standard of care were essential and that the appeal court was able to make these findings. The court determined that the mopping had not been conducted in a manner that left a dry passageway, indicating a breach of the duty of care. The court also considered the issue of causation and contributory negligence. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs. However, a cross-appeal was allowed in part, leading to the setting aside of certain District Court orders and the dismissal of a second cross-claim. The first respondent was ordered to pay the costs of the second respondent of the cross-appeal.
Orders
Orders of the court
1. Appeal dismissed.
2. That the appellant pay the respondents' costs of the appeal.
3. Cross-appeal allowed in part.
4. Set aside orders 3 and 5 made by the District Court on 13 December 2012 and order in lieu thereof that the second cross-claim be dismissed.
5. That the first respondent (second cross-respondent) pay the costs of the second respondent (cross-appellant) of the cross-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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