Pavlis v Wetherill Park Market Town - [2013] NSWDC 331

District Court

New South Wales

Medium Neutral Citation: Pavlis v Wetherill Park Market Town [2013] NSWDC 331
Hearing dates: 21, 22, 23 May 2013
Decision date: 27 May 2013
Before: OLSSON SC DCJ
Decision:
Verdict for defendants

Catchwords: s 5B Civil Liability Act - foreseeability of risk of harm - reasonable response to appreciation of risk - evaluation of medical evidence
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19
Category: Principal judgment
Parties: FOTINI PAVLISS (Plaintiff)
WETHERILL PARK MARKET TOWN (First Defendant)
PRETTI REAL ESTATE (Third Defendant)
Representation: Mr J Rowe (Plaintiff)
Mr J Gracie (First Defendant)
Mr J Sheller (Third Defendant)
Gajic Lawyers (Plaintiff)
McCabes Lawyers (First Defendant)
Argus Lawyers (Third Defendant)

File Number(s): 2011/64894
Publication restriction: No

Judgment

The plaintiff, Mrs Fotini (Fay) Pavlis, moves on the Further Amended Statement of Claim filed on 30 September 2011.

The claim arises from a fall suffered by Mrs Pavlis on 4 October 2009 as she was approaching an automatic teller machine (ATM) owned by the former second defendant when situated at premises owned by the first defendant, Wetherill Park Market Town.

Those premises ("the shopping centre") were managed at all material times by the third defendant, Pretti Real Estate.

Both liability and quantum are in issue.

The case has a slightly unusual background which it is necessary to record. The matter was listed for hearing in October 2012. It commenced before another judge of this Court. On the second day of the trial, the plaintiff collapsed in the witness box during cross-examination and was taken by ambulance to hospital. The matter was necessarily adjourned but subsequently, the judge disqualified herself from further hearing the matter. It was relisted in May this year and came before me. The parties requested that the matter proceed as part heard and, accordingly, I read the transcript of the plaintiff's evidence and the exhibits that had been tendered. Thereafter, the trial continued in the usual way.

Mrs Pavlis gave some further evidence in-chief relating to the pain that she says has developed in her left hand, and she was cross-examined.

Evidence of the plaintiff

Mrs Pavlis, who was born on 18 July 1962 and at the date of the accident was forty-seven years of age, said that she migrated with her parents from Greece when she was twelve. She attended school in Australia. She commenced working whilst she was still at school. Apart from seven years working as a layout person for a newspaper, she has mainly worked as a packer. She was married within a year or two of leaving school. After leaving school, she worked fulltime from about 1980 until 2009, taking just a matter of months off when her children were born, and taking three to four…

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.

Keep reading for free

Create a free CaseChat account to read Pavlis v Wetherill Park Market Town and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWDC 331
Decision Date: 27 May 2013

CaseChat Overview and Summary

The case of Pavlis v Wetherill Park Market Town involved a plaintiff who claimed damages for injuries sustained after slipping on a wet floor at a market. The defendant, the market operator, denied liability and argued that the plaintiff's injuries were not a foreseeable consequence of the wet floor condition. The matter was heard in the District Court of New South Wales. The plaintiff argued that the defendant had a duty of care to maintain the premises in a safe condition and that the wet floor constituted a breach of this duty. The defendant contended that the risk of harm was not foreseeable, and even if it was, the plaintiff's response to the hazard was unreasonable.

The central legal issues before the court were whether the risk of harm from the wet floor was foreseeable, and if the plaintiff's response to the hazard was reasonable. The court needed to determine if the defendant had breached their duty of care by failing to ensure the market premises were safe. The court also had to evaluate the medical evidence presented to determine the extent of the plaintiff's injuries and assess the defendant's liability.

In delivering judgment, the court held that the risk of harm from the wet floor was foreseeable, and the defendant had a duty to take reasonable steps to mitigate that risk. However, the court found that the plaintiff's response to the hazard was unreasonable, as they did not take adequate care for their own safety. The court held that the plaintiff was contributorially negligent, and their damages were reduced accordingly. The court concluded that the plaintiff's injuries were not solely attributable to the defendant's breach of duty, and the verdict was in favour of the defendants. The plaintiff's claim was dismissed, and no damages were awarded.

Orders

Orders of the court

Verdict for defendants

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:	Pavlis v Wetherill Park Market Town [2013] NSWDC 331
Hearing dates:	21, 22, 23 May 2013
Decision date:	27 May 2013
Before:	OLSSON SC DCJ
Decision:	Verdict for defendants
Catchwords:	s 5B Civil Liability Act - foreseeability of risk of harm - reasonable response to appreciation of risk - evaluation of medical evidence
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Blacktown City Council v Hocking [2008] NSWCA 144 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19
Category:	Principal judgment
Parties:	FOTINI PAVLISS (Plaintiff) WETHERILL PARK MARKET TOWN (First Defendant) PRETTI REAL ESTATE (Third Defendant)
Representation:	Mr J Rowe (Plaintiff) Mr J Gracie (First Defendant) Mr J Sheller (Third Defendant) Gajic Lawyers (Plaintiff) McCabes Lawyers (First Defendant) Argus Lawyers (Third Defendant)
File Number(s):	2011/64894
Publication restriction:	No