Lynch v Kinney Shoes (Australia) Ltd

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 2002

DIVISION:

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 dissenting  

ORDER:

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, considered

COUNSEL:

D O J North SC, with M A Drew for the appellant
R C Morton for the respondents

SOLICITORS:

Bennett & Philp as town agents for Roati & Firth for the appellant
McInnes Wilson for the respondents

1. 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.

1. 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,…