SUPREME COURT OF QUEENSLAND
CITATION:
Lynch v Kinney Shoes (Australia) Ltd & Ors [2005] QCA 326
PARTIES:
ALLOUISE JOAN LYNCH
(plaintiff/appellant)
v
KINNEY SHOES (AUSTRALIA) LIMITED
ACN 004 327 566
(first defendant/first respondent)
VENATOR GROUP AUSTRALIA LIMITED
ACN 004 327 566
(second defendant/second respondent)
COLORADO GROUP LIMITED
ACN 004 327 566
(third defendant/third respondent)FILE NO/S:
Appeal No 10395 of 2004
SC No183 of 2002DIVISION:
Court of Appeal
PROCEEDING:
Personal Injury (Liability and Quantum)
ORIGINATING COURT:
Supreme Court at Townsville
DELIVERED ON:
2 September 2005
DELIVERED AT:
Brisbane
HEARING DATE:
24 May 2005
JUDGES:
McMurdo P, Atkinson and Mullins JJ
Separate reasons for judgment of each member of the Court, McMurdo P and Mullins J concurring as to the order made, Atkinson J dissentingORDER:
Appeal dismissed with costs
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES – OCCUPIERS – where appellant entered a shop and tripped over a display platform – whether the respondent failed to do what a reasonable person would in the circumstances do by way of response to that foreseeable risk – whether the display platform should have been obvious to a person exercising ordinary perception, intelligence and judgment
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – where the trial judge assessed apportionment for the appellant’s contributory negligence at 50 per cent – whether this should be disturbed on appeal
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, considered
Dailly v Spot-on Investments Pty Ltd (1995) Aust Torts Reports 81-363, considered
Pennington v Norris (1956) 96 CLR 10, considered
Phillis v Daly (1988) 15 NSWLR 65, considered
Thompson v Woolworths (Qld) Pty Ltd (2005) 214 ALR 452; (2005) 79 ALJR 904; [2005] HCA 19, considered
Warren v Coombes (1979) 142 CLR 531, considered
Webb v The State of South Australia (1982) 43 ALR 465; (1982) 56 ALJR 912, considered
Wyong Shire Council v Shirt (1980) 146 CLR 40, consideredCOUNSEL:
D O J North SC, with M A Drew for the appellant
R C Morton for the respondentsSOLICITORS:
Bennett & Philp as town agents for Roati & Firth for the appellant
McInnes Wilson for the respondents
McMURDO P: The issues and facts are comprehensively set out in the reasons for judgment of Atkinson J. I need only repeat, vary or add to these to explain my reasons for reaching a different conclusion: I would dismiss the appeal. I agree, however, with Atkinson J's reasons for rejecting the appellant's contention that the learned primary judge erred in assessing damages.
The primary ground of appeal is whether the learned primary judge was entitled to conclude that the respondent shoe store breached its duty to the appellant, Ms Lynch, when she was shopping in the store on 15 March 1999. The appellant seeks to establish that breach by reliance on the evidence of Mr Roger Kahler,…
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- Case
- [2005] QCA 326
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the respondent owed a duty of care to the appellant and, if so, whether the respondent breached that duty. The court also needed to determine if the appellant's contributory negligence should be apportioned, and if so, at what percentage. The court considered the foreseeability of the risk, the likelihood of injury, and the steps taken by the respondent to mitigate the risk. The court also examined the appellant's actions and whether they contributed to her own injury.
The court found that the respondent owed a duty of care to the appellant as an invitee. The court held that the respondent was aware, or ought to have been aware, of the potential risk posed by the display platform and failed to take reasonable steps to mitigate that risk. The court found that the respondent's failure to remove the display platform from the floor was a breach of that duty. The court also found that the appellant's contributory negligence should be apportioned at 50 per cent, as the appellant failed to exercise reasonable care for her own safety. The court held that the trial judge's assessment of apportionment was not erroneous.
The court dismissed the appeal and affirmed the trial judge's decision. The court held that the respondent was liable for 50 per cent of the appellant's damages, and the appellant was liable for the other 50 per cent. The court ordered the appellant to pay the respondent's costs. The court found that the trial judge's assessment of apportionment was not erroneous and that the respondent was liable for half of the appellant's damages. The court dismissed the appeal with costs.
Orders
Orders of the court
Appeal dismissed with costs
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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