McLean v Star City Pty Ltd - [2008] NSWDC 143

NEW SOUTH WALES DISTRICT COURT

CITATION:
McLean v Star City Pty Ltd [2008] NSWDC 143

FILE NUMBER(S):
Newcastle 518/05

HEARING DATE(S):
28-30 April, 1-2, 5-7 May 2008

JUDGMENT DATE:
13 August 2008

PARTIES:
John McLean (Plaintiff)
Star City Pty Ltd (Defendant)

JUDGMENT OF:
Sidis DCJ

COUNSEL:
C A W Hart (Plaintiff)
M H Best (Defendant)

SOLICITORS:
Bale Boshev (Plaintiff)
Wotton & Kearney (Defendant)

CATCHWORDS:
TORT
fall on escalator
whether caused by mechanical defect
whether defendant's regime for repair and maintenance inadequate
connection between incident and deterioration in pre-existing conditions.

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
1. Verdict for the defendant.
2. The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended until 22 August 2008 to allow either party to list the proceedings for further argument on the issue of costs.
3. Exhibits will be retained for 28 days or until further order.

JUDGMENT:

JUDGMENT

On 16 June 2003 an incident occurred on escalator 11 leading to the foyer of the Star City Casino. Mr John McLean, then aged 79, claimed that he fell and suffered injury in the course of that incident.

The issues involved in deciding the claim were:

1             The circumstances that caused the plaintiff to fall.
2             Whether those circumstances were the result of the defendant’s neglect.
3             The extent to which the plaintiff was injured as a result of the incident.
4             The compensation, if any, to be awarded to the plaintiff.

ISSUE 1 – THE CIRCUMSTANCES OF THE PLAINTIFF’S FALL

The plaintiff claimed that the cause of the incident was a malfunction of the handrail on escalator 11.

The defendant’s response to the claim was that the incident occurred when a patron, Mr Toutounjian, collapsed on the escalator, causing a crush of persons as the escalator arrived at its discharge point.

Evidence of the plaintiff and Mrs McLean

The plaintiff and Mrs McLean gave evidence of their recollections of the incident. The plaintiff said that he and his wife were in the habit of travelling several times each week from their home on the Central Coast to the Casino to play roulette. They travelled by train and took a bus to the Casino. On disembarking from the bus they ascended to an atrium area of the Casino using escalator 11.

On 16 June 2001 there were six persons on the bus, four of whom stepped onto the escalator ahead of the plaintiff and Mrs McLean. The first of them was a gentleman, identified as Mr Toutounjian. He was followed, in order, by a woman of Asian appearance, two women of European appearance, Mrs McLean and the plaintiff.

The plaintiff said that on stepping on to the escalator he placed his left hand on the moving rail and noticed that it was hot. The escalator, however, moved normally until the group travelled about half way towards the Casino. At that point the handrail stopped moving but the steps of the escalator continued to move. The plaintiff lost his balance…

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 McLean v Star City Pty Ltd

Details

AGLC: McLean v Star City Pty Ltd [2008] NSWDC 143
Case: [2008] NSWDC 143
Decision Date: 13 August 2008

CaseChat Overview and Summary

In McLean v Star City Pty Ltd, the plaintiff, McLean, brought an action against the defendant, Star City, alleging that she fell on an escalator due to a mechanical defect. The dispute was heard by the Supreme Court of New South Wales. The plaintiff sought compensation for injuries sustained in the incident, claiming that the defendant's inadequate maintenance and repair regime directly contributed to the defect, which in turn caused her fall. Additionally, McLean argued that the incident exacerbated pre-existing medical conditions, leading to further injury and suffering.

The court was tasked with determining whether the escalator malfunction was due to a mechanical defect, and if so, whether the defendant's maintenance and repair practices were deficient. Another critical issue was whether there was a causal link between the escalator incident and the deterioration of McLean's pre-existing conditions. The court also needed to consider whether McLean's pre-existing conditions were exacerbated by the incident to the extent that they contributed to her overall injury and suffering.

The court ruled in favour of the defendant, finding that there was no evidence of a mechanical defect in the escalator at the time of the incident. The court was satisfied that Star City had an adequate regime for the repair and maintenance of its escalators. Furthermore, the court found that there was no direct causal link between the incident and the exacerbation of McLean's pre-existing conditions. The plaintiff's claims were thus dismissed. The court ordered that the defendant's costs of the proceedings be paid by the plaintiff, though this order was suspended to allow for potential further argument on the issue of costs. The exhibits were to be retained for a period of 28 days or until further order.

Orders

Orders of the court

1. Verdict for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceedings. This order is suspended until 22 August 2008 to allow either party to list the proceedings for further argument on the issue of costs. 3. Exhibits will be retained for 28 days or until further order.

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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