Raciti v Wadren Pty Ltd - [2006] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3745 of 2005

ELIZABETH ANNA RACITI
	Appellant
v.
WADREN PTY LTD	Respondent

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JUDGES:	CHERNOV, NETTLE and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2006
DATE OF JUDGMENT:	23 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 132

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Negligence – Duty of care – Occupier’s liability – Personal injury – Ramp intruding on stairway – Whether ramp created a foreseeable risk of injury to users of stairway – Whether ramp causative of injury – Whether failure to remove ramp breached the required standard of care – Wrongs Act 1958, s.14B.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.J. Waugh	Watson Lawyers
For the Respondent	Mr J.P. Brett	Deacons

CHERNOV, J.A.:

The appellant, Elizabeth Anna Raciti, appeals against the judgment of a judge of the County Court given on 22 June 2005 dismissing her claim for damages for injuries she suffered when she fell down a number of steps at the bottom of a stairway at the respondent’s commercial premises in Werribee. The appellant also claimed in the notice of appeal that her Honour erred in ordering that the defendant’s counsel was entitled to a brief fee on a scale higher than that which would ordinarily apply, but this claim was abandoned at the hearing before us.

The circumstances in which the accident occurred were these. The premises where the accident occurred comprised a two storey commercial building that included a hall on the first floor, where bingo was played by members of the public, a library and a gymnasium. The building formed part of the Werribee Plaza Corner Development and was constructed in late 1992 or early 1993. The primary judge was not satisfied on the evidence that the respondent took a relevant part in the construction of the building, and in particular the staircase within it to which reference will be made later, but found that at all times since its construction the respondent was the occupier. The appellant, who was aged 41 years at the time of the accident, had regularly played bingo at the premises three to four times per week during the preceding twelve months. On the evening in question, Monday, 11 March 2002, she attended the bingo hall with her daughter, along with over 200 people who played the game on that evening. At its conclusion – at approximately 10pm – the appellant waited for the first rush of people to depart and then left with ten or twelve others. They proceeded to the ground floor by the open staircase instead of using the lifts. So far as is relevant, the stairway had a tiled finish with a non-slip strip on the tread nosing and was bound by a 65mm diameter steel hand-rail on both sides that protruded approximately 118mm from the wall. As her Honour noted in her reasons, it was accepted at the hearing that the first landing had a width of approximately 1.63 metres and that the width of the…

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: [2006] VSCA 132
Decision Date: 23 June 2006

CaseChat Overview and Summary

In the matter of Raciti v Wadren Pty Ltd, the plaintiff, Mr. Raciti, brought an action against the defendant, Wadren Pty Ltd, for injuries sustained after falling on a ramp that intruded into a stairway at the defendant’s premises. The plaintiff alleged that the defendant was negligent in maintaining the ramp and failing to warn of its presence, which led to his injuries. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the ramp created a foreseeable risk of injury to users of the stairway, if the ramp was a cause of the plaintiff’s injuries, and whether the defendant’s failure to remove the ramp or warn of its presence constituted a breach of the required standard of care. The court had to consider the principles of occupier’s liability under the Wrongs Act 1958, specifically section 14B, which governs the duty of care owed by an occupier to lawful visitors.

The court held that the ramp did create a foreseeable risk of injury, as it was an unexpected obstruction in a stairway commonly used by pedestrians. The court further determined that the ramp was a significant contributing factor to the plaintiff’s fall and subsequent injuries. The court found that the defendant had failed to exercise reasonable care by not removing the ramp or providing adequate warning of its presence, thereby breaching the standard of care required under the statute. Consequently, the court ruled in favour of the plaintiff.

The court ordered Wadren Pty Ltd to pay damages to Mr. Raciti for his injuries, along with costs of the proceedings. The specific amount of damages was to be determined in a subsequent assessment.

Orders