Raad v VM & KTP Holdings Pty Ltd - [2017] NSWCA 190

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190
Hearing dates: 13 June 2017
Decision date: 01 August 2017
Before: Macfarlan JA at [1];
Simpson JA at [47];
Sackville AJA at [48]
Decision:
(1) The appeal and application for leave to cross-appeal are dismissed.
(2) No order for costs of either the appeal or application for leave to cross-appeal.

Catchwords:
NEGLIGENCE – occupier’s liability – slip and fall accident on a tiled area in shopping village - duty to take reasonable care so that premises safe for users taking reasonable care for their own safety – foreseeable users included those who may be inattentive or careless, and those proceeding above a normal pace when tiles were wet – reasonable person in the respondent’s position would have taken reasonable steps to reduce the significant risk of such persons slipping and falling
NEGLIGENCE – occupier’s liability – damages – whether there was a causal connection between claimed damages and actionable conduct
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D(1)
Cases Cited: Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29
House v R (1936) 55 CLR 499; [1936] HCA 40
Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75
Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492
Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Thompson v Woolworths (Q’land) Pty Ltimited (2005) 221 CLR 234; [2005] HCA 19
Webb v South Australia (1982) 56 ALJR 912
Category: Principal judgment
Parties: Abdul Raad (Appellant)
VM & KTP Holdings Pty Ltd as Trustee for VM & KTP
Nguyen Family Trust (Respondent)
Representation:
Counsel:
B J Gross QC / V Jurisich (Appellant)
R A Cavanagh SC / R Gambi (Respondent)
Solicitors:
PK Simpson & Co (Appellant)
Curwoods (Respondent)

File Number(s): CA 2016/219308
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2016] NSWSC 888

Date of Decision:

29 June 2016

Before:

Davies J

File Number(s):

SC 2013/144125

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 13 June 2011 Mr Abdul Raad, the appellant, was injured when he slipped and fell on a wet, tiled, outdoor area at a shopping village occupied by the respondent. He commenced an action for damages against the respondent, claiming that it failed to take reasonable care for his safety as a user of the shopping village. By a judgment of 29 June 2016, Davies J awarded $75,547 in damages to Mr Raad. This figure reflected a 10% reduction by reason of a finding of contributory negligence on Mr Raad’s part.

On appeal Mr Raad contended that the damages award was inadequate because first, his Honour erred in finding that Mr Raad…

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: [2017] NSWCA 190
Decision Date: 01 August 2017

CaseChat Overview and Summary

The appeal concerned a slip and fall accident that occurred on a tiled area within a shopping village. The appellant, Raad, alleged negligence on the part of the respondent, VM & KTP Holdings Pty Ltd, as the occupier of the premises. The core of the dispute revolved around whether the respondent had breached its duty of care to ensure the safety of users of the premises.

The court was required to determine two primary legal issues. Firstly, whether the respondent, as occupier, had breached its duty to take reasonable care to ensure the premises were safe for users who were themselves taking reasonable care for their own safety. This included considering whether foreseeable users might be inattentive or careless, or proceed at a pace that increased risk when the tiles were wet. Secondly, the court had to assess whether there was a causal connection between the appellant's claimed damages and the respondent's alleged actionable conduct.

The court reasoned that a reasonable occupier in the respondent's position would have recognised the significant risk of persons slipping and falling on wet tiles, particularly given that foreseeable users could be inattentive or moving at a normal pace. Consequently, the respondent ought to have taken reasonable steps to mitigate this risk. The court found that the respondent had failed to discharge its duty of care. Furthermore, the court was satisfied that a causal connection existed between the respondent's breach of duty and the appellant's injuries.

The appeal and the application for leave to cross-appeal were dismissed. No order was made for the costs of either the appeal or the application for leave to cross-appeal.

Orders

Orders of the court

(1) The appeal and application for leave to cross-appeal are dismissed.

(2) No order for costs of either the appeal or application for leave to cross-appeal.

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:	Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190
Hearing dates:	13 June 2017
Decision date:	01 August 2017
Before:	Macfarlan JA at [1]; Simpson JA at [47]; Sackville AJA at [48]
Decision:	(1) The appeal and application for leave to cross-appeal are dismissed. (2) No order for costs of either the appeal or application for leave to cross-appeal.
Catchwords:	NEGLIGENCE – occupier’s liability – slip and fall accident on a tiled area in shopping village - duty to take reasonable care so that premises safe for users taking reasonable care for their own safety – foreseeable users included those who may be inattentive or careless, and those proceeding above a normal pace when tiles were wet – reasonable person in the respondent’s position would have taken reasonable steps to reduce the significant risk of such persons slipping and falling NEGLIGENCE – occupier’s liability – damages – whether there was a causal connection between claimed damages and actionable conduct
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D(1)
Cases Cited:	Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 House v R (1936) 55 CLR 499; [1936] HCA 40 Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Thompson v Woolworths (Q’land) Pty Ltimited (2005) 221 CLR 234; [2005] HCA 19 Webb v South Australia (1982) 56 ALJR 912
Category:	Principal judgment
Parties:	Abdul Raad (Appellant) VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust (Respondent)
Representation:	Counsel: B J Gross QC / V Jurisich (Appellant) R A Cavanagh SC / R Gambi (Respondent) Solicitors: PK Simpson & Co (Appellant) Curwoods (Respondent)
File Number(s):	CA 2016/219308
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2016] NSWSC 888 Date of Decision: 29 June 2016 Before: Davies J File Number(s): SC 2013/144125