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Leman v HV Operations Pty Limited

Leman v HV Operations Pty Limited

Case [2017] NSWDC 113 24 May 2017

Causation

Contributory Negligence

Quantum

Tort Law

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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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leman v HV Operations Pty Limited

Details

AGLC: Leman v HV Operations Pty Limited [2017] NSWDC 113
Case: [2017] NSWDC 113
Decision Date: 24 May 2017

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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Citations

AGLC Citation

Leman v HV Operations Pty Limited [2017] NSWDC 113

Most Recent Citation

Travers v Caringa Enterprises Ltd [2017] NSWDC 143

Cases citing this decision · 1 of 1 shown

Travers v Caringa Enterprises Ltd
[2017] NSWDC 143 Para 45

…18 at [41] and Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267. I set those principles out in Leman v HV Operations Pty Limited [2017] NSWDC 113 and will not repeat them here.…

View all 1 citing cases →

Cases cited in this decision · 28 of 28 shown

Metaxoulis v McDonald's Australia Ltd
[2015] NSWCA 95

…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 an…
Jackson v McDonald's Australia Ltd
[2014] NSWCA 162 Para 49

…The duty of care must be identified with precision, for the reasons explained by the NSW Court of Appeal in Jackson v McDonald’s Australia [2014] NSWCA 162 at [7]-[8]. It is only through correct identification of the risk that the Court can determine what a reasonable response to that risk would be: Roads and Traff…
QBE v Orcher
[2013] NSWCA 478 Para 23

…gular use from the state of the path, but the dangers of making such assumptions from photographs are well known ( QBE Insurance (Australia) v Orcher [2013] NSWCA 478 at [23]; Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 at [69] – [75]; Blacktown City Council v Hocking [2008] NSWCA 144 per Spig…
Wright v Perpetual Limited
[2011] NSWDC 37 Para 62

…aintiff has chosen an obviously dangerous route (such as a garden bed in a car park rather than the normal pedestrian walkway: Wright v Perpetual Ltd [2011] NSWDC 37 at [103]) may also be relevant.…
Stojan (No 9) Pty Ltd v Kenway
[2009] NSWCA 364 Para 60

…The effect of this provision is to require individuals to take responsibility for their own lives and safety. In Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 the Court noted at [145]:…
Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor
[2009] NSWCA 287 Para 39

…[68] – [70]) per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor [2009] NSWCA 287 (at [39] – [41]) per Beazley JA (Giles and Ipp JJA agreeing).”…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27

…(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…
Angel v Hawkesbury City Council (No 2)
[2008] NSWCA 188 Para 23

…f the path, but the dangers of making such assumptions from photographs are well known ( QBE Insurance (Australia) v Orcher [2013] NSWCA 478 at [23]; Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 at [69] – [75]; Blacktown City Council v Hocking [2008] NSWCA 144 per Spigelman CJ at [7] to [13] and Tobias JA at [167] t…
Blacktown City Council v Hocking
[2008] NSWCA 144 Para 23

…rcher [2013] NSWCA 478 at [23]; Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 at [69] – [75]; Blacktown City Council v Hocking [2008] NSWCA 144 per Spigelman CJ at [7] to [13] and Tobias JA at [167] to [171]).…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 49

…of the risk that the Court can determine what a reasonable response to that risk would be: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [7]. In the present case, this requires a focus upon the defendant’s role as the owner (but not the occupier or controller) of the premises.…
Morgan v Owners of Strata Plan 13937 & anor
[2006] NSWSC 1019 Para 50

…ng that this is a non-exhaustive list of factors. The term “reasonable” is helpfully discussed by Brereton J in Morgan v Owners Strata Plan 13937 [2006] NSWSC 1019 at [32] as follows:…
Consolidated Broken Hill Ltd v Edwards
[2005] NSWCA 380

…knowledge that society may come under obligations of various kinds to him if the risk is realized”: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 (at [68] – [70]) per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority of New So…
Vairy v Wyong Shire Council
[2005] HCA 62

…mmow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [ Vairy v Wyong Shire Council [2005] HCA 62, [49], [126]]. It is necessary to consider these questions from the perspective of the defendant, with its state of knowledge, and ask whether the defendant…
Reid v Brett
[2005] VSC 18 Para 140

…The principles for reopening a case and recalling witnesses or seeking leave to adduce further evidence are helpfully set out in Reid v Brett [2005] VSC 18 at [41]. The relevant principles governing the exercise of discretionary power to reopen a case to admit further evidence where the hearing has concluded but…
Jermen v Shell Company of Australia Ltd
[2003] NSWSC 1106 Para 40

…ho has referred to the Code of Conduct in his report. The purpose of the Code of Conduct, as Shore J noted in Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106 at [28]-[29], is to eliminate what his Honour called the “hired gun expert and return the expert to the traditional role of being an objective witnes…
Cafest v Tombleson
[2003] NSWCA 210

…nable care for the safety of the entrant [ Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson [2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot therefore adequately or usefully be described simply as one to take reasonable c…
Graham Barclay Oysters Pty Ltd v Ryan
[2002] HCA 54

…ated in Wyong Shire Council v Shirt , what was a reasonable response to the risk of harm that existed [ Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 611-2 [192] (Gummow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [ Vairy v Wyong Shire Council…
Tame v New South Wales
[2002] HCA 35

…liable only if its failure to eliminate the risk shows a want of reasonable care for the safety of the entrant [ Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson [2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot theref…
Woods v Multi-sport Holdings Pty Ltd
[2002] HCA 9

…state of knowledge, and ask whether the defendant acted as a reasonably prudent person ought to have acted [ Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460].”…
Wilkinson v Law Courts Ltd
[2001] NSWCA 196 Para 52

…Counsel for the defendant draws my attention to Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [21] where the broad steps of the Supreme Court and their safety were considered in the context of determining the content of the duty of care. The Court noted (at [33]) that, rather than focus on the incident involving t…
Taber v NSW Land and Housing Corporation
[2001] NSWCA 182 Para 60

…pening in other ways (see generally Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1; 176 ALR 137 at [19]; Taber v NSW Land and Housing Corporation [2001] NSWCA 182 at [60]). Dr Emerson complained of the dimensions of the steps, the lack of marking and the absence of handrails (presumably one on each side of a user…
Jones v Bartlett
[2000] HCA 56

…onable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them [ Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, 177, 184-5 (Gleeson CJ); Wilkinson v Law Courts Limited [2001] NSWCA 196, [21] (Heydon JA)]. One must not slide from determination t…
Smith v New South Wales Bar Association
[1992] HCA 36 Para 141

…I have also had regard to the principles set out by the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267, these being referred to by counsel for the defendant in his own submissions.…
Australian Safeway Stores Pty Ltd v Zaluzna
[1987] HCA 7

…mstances for their safety, and to protect them from risks of injury which can be foreseen and avoided [ Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant’s presenc…
Hackshaw v Shaw
[1984] HCA 84

…otect them from risks of injury which can be foreseen and avoided [ Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant’s presence on the premises, the obviousn…
Wyong Shire Council v Shirt
[1980] HCA 112 Para 42

…seeable risk within the meaning of s 5B of the Civil Liability Act 2002 (NSW) and was not a far-fetched or fanciful risk within the calculus of Wyong Shire Council v Shirt (1980) 146 CLR 40…
Wyong Shire Council v Shirt
[1980] HCA 12

…ring, the magnitude of the consequences, and the cost or inconvenience of taking steps to remove, avoid or avert it [ Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40]. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe a…
[1975] QB 834
[1975] QB 834 Para 40

…dependent evidence for the Court’s benefit”. In Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69], Heydon JA refers to R v Turner [1975] QB 834 at 840 where Lawton LJ noted that if an expert had “omitted to consider relevant [facts], the opinion is likely to be valueless”.…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
5B, 5R 3 mentions (from Para 6)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 146)

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