Panther v Pischedda

[2013] NSWCA 236

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Panther v Pischedda [2013] NSWCA 236

Hearing dates:

17 June 2013

Decision date:

25 July 2013

Before:

Macfarlan JA at [1]
Barrett JA at [33]
Gleeson JA at [34]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - occupier's liability - respondent slipped on driveway giving access to rented premises - Civil Liability Act s 5B - whether risk of injury not insignificant - whether risk foreseeable - whether reasonable person in occupiers' position would have taken preventative measures such as providing handrails or alternative means of access

Legislation Cited:

Civil Liability Act 2002

Cases Cited:

Gillies v Saddington [2004] NSWCA 110
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Miller v Galderisi [2009] NSWCA 353

Category:

Principal judgment

Parties:

Jean Ann Panther (First Appellant)
Nicholas John Hampton (Second Appellant)
Maria Pischedda (Respondent)

Representation:

Counsel:
J Sexton SC/N Polin (Appellants)
S Norton SC/J Reimer (Respondent)
Solicitors:
Moray & Agnew (Appellants)
Brydens Law Office LP (Respondent)

File Number(s):

CA 2012/338310

 Decision under appeal 

Jurisdiction:

9101

Citation:

Maria Pischedda v Jean Ann Panther and Anor

Date of Decision:

2012-10-08 00:00:00

Before:

Curtis DCJ

File Number(s):

2010/254003

Judgment

1. MACFARLAN JA: On the evening of 6 November 2009, the respondent and her husband arrived at a self-contained flat at Wentworth Falls in the Blue Mountains which the respondent had booked with the second appellant for two nights accommodation. The appellants admitted that they were the occupiers of the premises which included the appellants' home and the separate flat.

1. The only access from the street to the flat (and the appellants' home) was down a steep driveway. Having walked up and down the driveway the evening that they arrived, the respondent and her husband left the next morning to go for a walk, during which it began to rain. As they returned down the driveway, the respondent fell heavily and broke her ankle. She said in evidence at the trial that she appreciated that the driveway might be slippery and therefore walked down it carefully but that her left foot slipped forward and she fell.

1. Subsequently, she commenced the present proceedings claiming damages from the appellants for breach of the duty of care that as occupiers they owed to her.

1. The primary judge, Curtis DCJ, noted that the driveway sloped "quite steeply" downwards from the street with a maximum gradient in the area where the respondent fell of one in 5.1 (19.4 per cent), that the surface of the driveway consisted of exposed river stones embedded in a cement matrix and no…