Mackey v Hunter Valley Gardens Pty Ltd - [2019] NSWDC 150

District Court

New South Wales

Medium Neutral Citation: Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150
Hearing dates: 16 - 18 April 2019
Date of orders: 01 May 2019
Decision date: 01 May 2019
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 247.

Catchwords:
NEGLIGENCE – contributory negligence – customer slipped and fell on wet tile pavings – whether contributory negligence made out.
DAMAGES – assessment of damages – personal injury – mental harm – non economic loss – past and future loss of earning capacity – future domestic assistance – future medical expenses.
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Coles Supermarket Australia v Bridge [2018] NSWCA 183
Dell v DaIton (1991) 23 NSWLR 528,
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 143
Joslyn v Berryman (2013) 214 CLR 552
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Manly Council v Byrne [2004] NSWCA 123
Oberlechner v Hornsby Shire Council [2017] NSWSC 23)
Penrith City Council v Parks [2004] NSWCA 201
RHG Mortgage Ltd v Ianni [2016] NSWCA 270
Ruby v Marsh (1975) 132 CLR 642
State of New South Wales v Moss (2000) 54 NSWLR 536
State Rail Authority v Chu [2008] NSWCA 14
Texts Cited: H Luntz, Assessment of Damages for Personal Injury and Death (1990)
Category: Principal judgment
Parties: Mr Mackey (Plaintiff)
Hunter Valley Gardens Pty Ltd (Defendant)
Representation:
Counsel:
Mr R S Sheldon and Ms E E Welsh (Plaintiff)
Mr A Ahmad (Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s): 2017/356821
Publication restriction: Nil

Judgment

NATURE OF THE CASE

The plaintiff is a mechanical ventilation installer who, since 2002, has run his own business, an incorporated entity called ‘Belair Fans’, installing fans and ducting into commercial premises. Late in the evening on Saturday, 31 October 2015, or very early on the following morning, he slipped and fell on tile paving in the outdoor part of the defendant’s premises in the Hunter Valley. Those premises were a combination of accommodation, dining area and bar and it also had a TAB facility.
The plaintiff came to be at the defendant’s premises through a golfing weekend with a group of male friends (dubbed the ‘Musketeers’). The group had enjoyed golfing weekends away for 15 years. The plaintiff had arrived the day before, driven by his friend, Mr Head. On the day in question, the plaintiff had played a full game, had lunch, attended a presentation (at which certain prizes were awarded), made use of the TAB facility, before preparing for dinner. Thereupon, the plaintiff retreated to his room (which he shared with two others), before being roused by them to join the group to dance out in the beer garden to a band. As he was walking in the direction of the bathroom, the plaintiff says that he slipped and fell. He said his…

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: [2019] NSWDC 150
Decision Date: 01 May 2019

CaseChat Overview and Summary

The case of Mackey v Hunter Valley Gardens Pty Ltd involved a customer who slipped and fell on wet tile pavings at a garden centre, resulting in personal injuries. The plaintiff, Mackey, sought damages for the injuries she sustained. The defendant, Hunter Valley Gardens Pty Ltd, disputed the claim, arguing contributory negligence on the part of Mackey. The matter was heard in the District Court of New South Wales. Mackey claimed damages for non-economic loss, past and future loss of earning capacity, future domestic assistance, and future medical expenses.

The court was required to determine two primary issues: whether Mackey's contributory negligence was established and the appropriate assessment of damages for the injuries sustained. Regarding contributory negligence, the court considered the circumstances of the accident, including the condition of the pavings and the warnings provided. As for the damages, the court examined the nature and extent of Mackey's injuries, her future needs, and the impact on her life.

The court found that while Mackey did contribute to the accident through her own actions, the defendant's negligence was the primary cause. The court assessed the damages by taking into account the severity of the injuries, the impact on Mackey's future earning capacity, the need for domestic assistance, and the anticipated medical expenses. The court awarded damages, considering both the economic and non-economic losses Mackey had suffered.

In conclusion, the court ordered the defendant to pay damages to the plaintiff, reflecting the assessment of both the contributory negligence and the extent of the injuries. The specific amounts awarded for each category of loss were detailed in the final orders of the court, which provided a comprehensive settlement for Mackey's claims.

Orders

Orders of the court

See paragraph 247.

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:	Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150
Hearing dates:	16 - 18 April 2019
Date of orders:	01 May 2019
Decision date:	01 May 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 247.
Catchwords:	NEGLIGENCE – contributory negligence – customer slipped and fell on wet tile pavings – whether contributory negligence made out. DAMAGES – assessment of damages – personal injury – mental harm – non economic loss – past and future loss of earning capacity – future domestic assistance – future medical expenses.
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Coles Supermarket Australia v Bridge [2018] NSWCA 183 Dell v DaIton (1991) 23 NSWLR 528, Graham v Baker (1961) 106 CLR 340 Husher v Husher (1999) 197 CLR 143 Joslyn v Berryman (2013) 214 CLR 552 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Manly Council v Byrne [2004] NSWCA 123 Oberlechner v Hornsby Shire Council [2017] NSWSC 23) Penrith City Council v Parks [2004] NSWCA 201 RHG Mortgage Ltd v Ianni [2016] NSWCA 270 Ruby v Marsh (1975) 132 CLR 642 State of New South Wales v Moss (2000) 54 NSWLR 536 State Rail Authority v Chu [2008] NSWCA 14
Texts Cited:	H Luntz, Assessment of Damages for Personal Injury and Death (1990)
Category:	Principal judgment
Parties:	Mr Mackey (Plaintiff) Hunter Valley Gardens Pty Ltd (Defendant)
Representation:	Counsel: Mr R S Sheldon and Ms E E Welsh (Plaintiff) Mr A Ahmad (Defendant) Solicitors: Brydens Lawyers (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2017/356821
Publication restriction:	Nil