Kljusuric v Gajjh United Pty Ltd

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kljusuric v Gajjh United Pty Ltd

Citation:

[2020] ACTMC 14

Hearing Dates:

18 November 2019, 20 – 22 November 2019

DecisionDate:

29 May 2020

Before:

Magistrate Morrison

Decision:

See paragraph [171]

Catchwords:

CIVIL LAW – NEGLIGENCE – personal injury – plaintiff sustained injury as a result of a fall at the defendant’s premises – whether defendant breached its duty of care – whether breach cannot be established unless court is satisfied that state of floor fell below accepted or recommended standard in relation to coefficients of friction – whether evidence establishes the floor was slippery – whether adequate cleaning procedures existed – causation – whether cause of plaintiff’s fall was a slip brought about by the defendant’s breach or a spontaneous subluxation of the patella – expert evidence – relevance of existence of other possible explanations

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss 45, 168

Civil Liability Act 2002 (NSW) s 5D

Court Procedures Rules 2006 (ACT) rule 1211

Cases Cited:

Australian Safeway Stores Pty Ltd v Zuluzna [1987] HCA 7; 162 CLR 479

Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Hackshaw v Shaw [1984] HCA 84; 155 CLR 614

Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367

Kocis v S E Dickens Pty Ltd [1998] 3 VR 408

Mason v Demasi [2009] NSWCA 227

Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182

Parties:

Ivanna Maria Kljusuric (Plaintiff)

Gajjh United Pty Ltd (Defendant)

Representation:

Counsel

S Whybrow (Plaintiff)

M Hutchings (Defendant)

Solicitors

Blumers Personal Injury Lawyers (Plaintiff)

Sparke Helmore Lawyers (Defendant)

File Number:

CS 213 of 2018

MAGISTRATE MORRISON:

Introduction

1. In this matter the plaintiff claims damages for personal injury suffered as a result of a fall at a McDonald’s restaurant in the suburb of Gold Creek in the Australian Capital Territory. It is conceded that the defendant owed the plaintiff a duty of care pursuant to s 168 of the Civil Law (Wrongs) Act 2002 (ACT) (“Wrongs Act”). However, the defendant denies liability on the basis that the defendant did not breach its duty of care to the plaintiff, and, even if such a breach is established, the defendant’s acts or omissions did not cause the plaintiff’s injury.

1. The matter proceeded to hearing before me over four days in November 2019. The parties have agreed that, should I find in favour of the plaintiff, the quantum of damages is assessed at $120,000.00 inclusive of pre-judgment interest.

Background

Factual background

1. The factual and procedural backgrounds to this matter are of relatively short compass. The plaintiff commenced proceedings by way of an Originating Claim filed on 12 September 2018. The defendant filed a Notice of Intention to Respond on 24 October 2018 and a Defence on 27 November 2018.

1. The events forming the subject of the claim took place on 17 September 2015. At the time, the…