Loose Fit Pty Limited v Marshbaum - [2011] NSWCA 372

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Loose Fit Pty Limited v Marshbaum & Ors [2011] NSWCA 372
Hearing dates: 13 October 2011
Decision date: 30 November 2011
Before: Campbell JA at 1
Handley AJA at 2
Sackville AJA at 3
Decision:
1) Dismiss the appeal by the Appellant ("Loose Fit") against the First Respondent ("Plaintiff"), with costs.
2) Allow Loose Fit's appeal against the Second and Third Respondents ("Owners").
3) Set aside the primary Judge's orders dismissing the cross-claim against the Owners with costs.
4) In lieu thereof, judgment for Loose Fit against the Owners for $221,720.78.
5) The Owners pay Loose Fit's costs of the cross-claim in the Court below.
6) The Owners pay Loose Fit's costs of the appeal insofar as those costs relate to the appeal against the Owners.
7) The Owners have a certificate under the Suitors Fund Act 1951 concerning the costs referred to in order 6.
[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 - injury to patron of fitness centre when she fell down staircase - no handrail - whether operator of fitness centre, as occupier of the staircase, breached its duty of care to the patron by failing to install a handrail - whether lessors of premises liable to contribute to the damages award - significance of lessors having created the risk by undertaking renovations in contravention of safety standards
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946
Civil Liability Act 2002
Local Government Act 1919
Cases Cited: Ahluwalia v Robinson [2003] NSWCA 175
Andrews v Nominal Defendant [1963] SR (NSW) 10
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479
Cavalier v Pope [1906] AC 428
Jones v Bartlett [2000] HCA 56; 205 CLR 166
Laresu v Clark [2010] NSWCA 180
Maclenan v Segar [1917] 2 KB 325
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 334
Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588
Warren v Coombes [1979] HCA 9; 142 CLR 531
Wilkinson v Law Courts Ltd [2011] NSWCA 196
Category: Principal judgment
Parties: Loose Fit Pty Limited - Appellant
Ellen Marshbaum - First Respondent
John Francis Kocx - Second Respondent
Marea Anne Hickie - Third Respondent
Representation: Counsel -
R Cavanagh SC with W Austrom - Appellant
B Walker SC with J Anderson - First Respondent
G Little with RJM Foord - Third Respondent
Solicitors -
Walker Hedges & Co - Appellant
Terrance Stern -…

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.

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Details

Case: [2011] NSWCA 372
Decision Date: 30 November 2011

CaseChat Overview and Summary

Loose Fit Pty Limited appealed against a judgment concerning injuries sustained by a patron of its fitness centre. The patron fell down a staircase within the premises, which lacked a handrail. The appeal also involved the lessors of the premises, who were alleged to be liable to contribute to damages awarded to the patron.

The central legal issues before the court were whether Loose Fit, as the occupier of the staircase, had breached its duty of care to the patron by failing to install a handrail, and whether the lessors were liable to contribute to any damages. The significance of the lessors having allegedly created the risk by undertaking renovations in contravention of safety standards was also a key consideration.

The court determined that Loose Fit had breached its duty of care to the patron. However, the appeal court allowed Loose Fit's appeal against the lessors, setting aside the primary judge's orders that dismissed Loose Fit's cross-claim against them. The court found that the lessors were liable to contribute to the damages.

Consequently, the court ordered that Loose Fit's appeal against the patron be dismissed. Loose Fit's appeal against the Owners was allowed, and judgment was entered for Loose Fit against the Owners for $221,720.78. The Owners were ordered to pay Loose Fit's costs of the cross-claim in the court below and Loose Fit's costs of the appeal insofar as those costs related to the appeal against the Owners, with the Owners to have a certificate under the Suitors Fund Act 1951 concerning those costs.

Orders

Orders of the court

1) Dismiss the appeal by the Appellant ("Loose Fit") against the First Respondent ("Plaintiff"), with costs.

2) Allow Loose Fit's appeal against the Second and Third Respondents ("Owners").

3) Set aside the primary Judge's orders dismissing the cross-claim against the Owners with costs.

4) In lieu thereof, judgment for Loose Fit against the Owners for $221,720.78.

5) The Owners pay Loose Fit's costs of the cross-claim in the Court below.

6) The Owners pay Loose Fit's costs of the appeal insofar as those costs relate to the appeal against the Owners.

7) The Owners have a certificate under the Suitors Fund Act 1951 concerning the costs referred to in order 6.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Loose Fit Pty Limited v Marshbaum & Ors [2011] NSWCA 372
Hearing dates:	13 October 2011
Decision date:	30 November 2011
Before:	Campbell JA at 1 Handley AJA at 2 Sackville AJA at 3
Decision:	1) Dismiss the appeal by the Appellant ("Loose Fit") against the First Respondent ("Plaintiff"), with costs. 2) Allow Loose Fit's appeal against the Second and Third Respondents ("Owners"). 3) Set aside the primary Judge's orders dismissing the cross-claim against the Owners with costs. 4) In lieu thereof, judgment for Loose Fit against the Owners for $221,720.78. 5) The Owners pay Loose Fit's costs of the cross-claim in the Court below. 6) The Owners pay Loose Fit's costs of the appeal insofar as those costs relate to the appeal against the Owners. 7) The Owners have a certificate under the Suitors Fund Act 1951 concerning the costs referred to in order 6. [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 - injury to patron of fitness centre when she fell down staircase - no handrail - whether operator of fitness centre, as occupier of the staircase, breached its duty of care to the patron by failing to install a handrail - whether lessors of premises liable to contribute to the damages award - significance of lessors having created the risk by undertaking renovations in contravention of safety standards
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946 Civil Liability Act 2002 Local Government Act 1919
Cases Cited:	Ahluwalia v Robinson [2003] NSWCA 175 Andrews v Nominal Defendant [1963] SR (NSW) 10 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Cavalier v Pope [1906] AC 428 Jones v Bartlett [2000] HCA 56; 205 CLR 166 Laresu v Clark [2010] NSWCA 180 Maclenan v Segar [1917] 2 KB 325 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 334 Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 Warren v Coombes [1979] HCA 9; 142 CLR 531 Wilkinson v Law Courts Ltd [2011] NSWCA 196
Category:	Principal judgment
Parties:	Loose Fit Pty Limited - Appellant Ellen Marshbaum - First Respondent John Francis Kocx - Second Respondent Marea Anne Hickie - Third Respondent
Representation:	Counsel - R Cavanagh SC with W Austrom - Appellant B Walker SC with J Anderson - First Respondent G Little with RJM Foord - Third Respondent Solicitors - Walker Hedges & Co - Appellant Terrance Stern -…