Leman v HV Operations Pty Limited

Case [2017] NSWDC 113


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Leman v HV Operations Pty Limited [2017] NSWDC 113
Hearing dates: 20, 21 and 22 March, 3 May 2017
Date of orders: 24 May 2017
Decision date: 24 May 2017
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Judgment for the defendant.
(2) Costs reserved.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: TORT – personal injury – plaintiff leaves covered walkway to car park to use earthen pathway contrary to warning sign and trips on a drain in heavy rain – liability – contributory negligence – causation – quantum
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5R
Civil Procedure Act 2005 (NSW), ss 56-62
Cases Cited: Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Blacktown City Council v Hocking [2008] NSWCA 144
Jackson v McDonald’s Australia [2014] NSWCA 162
Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106
Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705
Metaxoulis v McDonalds Ltd [2015] NSWCA 95
Morgan v Owners Strata Plan 13937 [2006] NSWSC 1019
QBE Insurance (Australia) v Orcher [2013] NSWCA 478
R v Turner [1975] QB 834
Reid v Brett [2005] VSC 18
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Tame v New South Wales (2002) 211 CLR 317
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wright v Perpetual Ltd [2011] NSWDC 37
Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:Principal judgment
Parties: Plaintiff: John William Leman
Defendant: HV Operations Pty Limited
Representation:

Counsel:
Plaintiff: Mr C Hart
Defendant: Mr D Talintyre

  Solicitors:
Plaintiff: Bale Boshev Lawyers
Defendant: Yeldham Price O'Brien Lusk
File Number(s): 2016/160748
Publication restriction: None

Judgment

Introduction

  1. The plaintiff, by statement of claim filed in the Newcastle Registry of the District Court on 25 May 2016, seeks damages from his employer for negligence following the plaintiff’s injury on 18 November 2013.

  2. The circumstances of the injury, according to paragraph 5 of the statement of claim, were as follows. The plaintiff was walking towards a car park area during heavy rain when he stepped on a gutter, contaminated with water and mud, causing him to slip and fall.

  3. The particulars of negligence provided in paragraph 7 of the statement of claim are:

“7.1 By their servants and/or agents, failing to take reasonable care to provide a safe system of work, insofar as the system of work did control the risk of injury from the presence of muddy and slippery conditions in the area by which the Plaintiff accessed the carpark, giving rise to a risk that he would slip and fall (“the risk”).

7.2 By their servants and/or agents, failing to take reasonable care to provide a safe place of…

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AGLC
Leman v HV Operations Pty Limited [2017] NSWDC 113
Case
[2017] NSWDC 113
Decision Date

CaseChat Overview and Summary

The matter before the court involved a claim by the plaintiff, Leman, against the defendant, HV Operations Pty Limited, arising from an incident where the plaintiff sustained personal injuries. The plaintiff alleged that she left a covered walkway leading to a car park and instead used an earthen pathway, contrary to a warning sign, and subsequently tripped on a drain in heavy rain. The plaintiff sought damages for her injuries, and the defendant argued that the plaintiff was contributorily negligent and that causation and quantum were issues to be resolved. The case was heard in the Local Court of New South Wales.

The central legal issues before the court were whether the defendant was liable for the plaintiff's injuries, the extent of the plaintiff's contributory negligence, the question of causation, and the assessment of damages. The court needed to determine if the defendant breached any duty of care owed to the plaintiff and whether the plaintiff's actions contributed to her injuries. Additionally, the court had to establish whether the defendant's alleged breach of duty caused the plaintiff's injuries and, if so, quantify the damages payable to the plaintiff.

In delivering the judgment, the court found that the plaintiff had indeed breached the warning sign by using the earthen pathway and had contributed to her injuries. The court held that the plaintiff's actions were a significant factor in the causation of her injuries and that her contributory negligence effectively barred her claim for damages. The court concluded that the plaintiff's injuries were not solely attributable to the defendant's breach of duty, if any, and that the plaintiff's contributory negligence outweighed the defendant's potential liability. As a result, the court entered judgment in favour of the defendant, dismissing the plaintiff's claim.

The court's final orders were that judgment be entered for the defendant, costs be reserved, the plaintiff be granted liberty to restore in relation to costs, and the exhibits be retained for 28 days. The plaintiff's claim for damages against the defendant was dismissed, and the parties were left to bear their own costs.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Costs reserved.

(3) Liberty to restore in relation to costs.

(4) Exhibits retained for 28 days.

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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