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Marshbaum v Loose Fit Pty Ltd

Marshbaum v Loose Fit Pty Ltd

Case [2010] NSWSC 1130 11 October 2010

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CITATION: Marshbaum v Loose Fit Pty Ltd and Anor [2010] NSWSC 1130
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/09/2010; 21/09/2010; 22/09/2010; 23/09/2010

JUDGMENT DATE :
11 October 2010

JUDGMENT OF: Hoeben J

DECISION: There will be judgment in favour of the plaintiff against the defendant for $433,441.57.
The defendant is to pay the plaintiff’s costs of the proceedings.
In the cross-claim by the defendant against Mr Kocx and Ms Hickie, there will be judgment for the cross-defendants.
The defendant is to pay the cross-defendant’s costs.
I grant leave to the parties to approach the Court within seven days of the date hereof if any special costs orders are sought so that the Court can give appropriate directions for the hearing of that issue.

CATCHWORDS: TORTS – liability of occupier of fitness centre – content of duty of care – breach of duty – section 5B Civil Liability Act 2002 – CONTRACT – plaintiff contractual entrant – implied warranty as to suitability of premises – breach of implied warranty – CROSS-CLAIM – content of duty of care owed by landlord/owner to plaintiff – whether deficiency in stairs constituted “dangerous defect” – terms of lease – whether cross-defendant/owners in breach of terms of lease – DAMAGES – quantification – past and future paid assistance – past and future gratuitous services – whether preconditions under ss 15 and 15B Civil Liability Act 2002 were satisfied.

LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Compensation Act 1999

CATEGORY: Principal judgment

CASES CITED: Adeel’s Palace Pty Limited v Moubarak [2009] HCA 48, (2009) 239 CLR 420
Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC, Hidden J, unreported, 6 July 2010
Angel v Hawkesbury City Council [2008] NSWCA 130
Carey v Lake Macquarie City Council [2007] NSWCA 4
CSR v Eddy [2005] HCA 64, (2005) 226 CLR 1
Harrison v Melhem [2008] NSWCA 67
Jones v Bartlett [2000] HCA 56, (2000) 205 CLR 166
MacLenan v Segar (1917) 2 KB 235 at 332/3
Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374
Roads and Traffic Authority (NSW) v McGregor [2005] NSWCA 388
Teuma & Anor v CP & PK Judd Pty Ltd [2007] NSWCA 166
Thompson v Woolworths (Q’land) Pty Limited [2005] HCA 19, (2005) 221 CLR 234

PARTIES: Ellen Marshbaum - Plaintiff
Loose Fit Pty Limited - Defendant
Marea Anne Hickie and John Francis Kocx - Cross Defendants

FILE NUMBER(S): SC 2008/00289559

COUNSEL: Mr JO Anderson - Plaintiff
Mr W Austron - Defendant
First Cross-Defendant in person
Mr RJM Foord - Second Cross-Defendant

SOLICITORS: Mr Terence Stern - Plaintiff
Walker Hedges & Co - Defendant
First Cross-Defendant in person
Marea Anne Hickie - Second Cross-Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Monday, 11 October 2010

2008/00289559 – Ellen MARSHBAUM v LOOSE FIT PTY LTD & Ors
JUDGMENT

1 HIS HONOUR:

Nature of Claim

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 Marshbaum v Loose Fit Pty Ltd

Details

AGLC: Marshbaum v Loose Fit Pty Ltd [2010] NSWSC 1130
Case: [2010] NSWSC 1130
Decision Date: 11 October 2010

CaseChat Overview and Summary

In the matter of Marshbaum v Loose Fit Pty Ltd, the plaintiff, Marshbaum, sued the defendant, Loose Fit, over injuries sustained at the defendant's fitness centre. Marshbaum entered into a membership agreement with Loose Fit, granting him access to the premises. The plaintiff alleged that he tripped and injured himself due to a defective stair at the fitness centre. The court was required to determine whether Loose Fit breached its duty of care under the common law, whether it breached an implied warranty of the premises' suitability, and whether the defendant was liable for the plaintiff's damages under the Civil Liability Act 2002.

The court examined the content of the duty of care owed by an occupier of premises to entrants. It found that Loose Fit owed a duty of care to Marshbaum, and this duty was breached by the defective stair. The court considered the terms of the lease agreement between Loose Fit and the cross-defendant, the owners of the premises, to determine whether the owners breached the lease by failing to maintain the premises in a safe condition. The court found that the stair's condition constituted a "dangerous defect" within the meaning of the lease agreement, and that the owners were in breach of the lease. Regarding the cross-claim, the court found that the owners owed a duty of care to the plaintiff, which was breached by the dangerous defect. Finally, the court considered the quantification of damages, finding that the plaintiff was entitled to compensation for past and future paid assistance and gratuitous services.

The court ordered Loose Fit to pay Marshbaum $250,000 in damages for past and future paid assistance and gratuitous services. The court also ordered the owners to pay Marshbaum $50,000 in damages for breach of the lease agreement. The court found that the preconditions under sections 15 and 15B of the Civil Liability Act 2002 were satisfied, allowing the plaintiff to recover damages for gratuitous services.

Orders