Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 Hearing dates: 9 December 2016 Decision date: 19 May 2017 Before: Macfarlan JA at [1];
Meagher JA at [2];
Fagan J at [75]Decision: Appeal dismissed with costs.
Catchwords: TORT – negligence – occupier’s liability – where respondent injured by tripping over corner of raised timber platform while walking across the lobby area of appellant occupier’s hotel – where primary judge found respondent did not see raised platform due to “intense glare” in lobby area – whether primary judge erred in finding respondent affected by glare – whether absent finding as to glare, appellant breached duty as occupier by failing to warn of risk of tripping – whether that was an “obvious” one such that appellant did not owe any duty to warn (Civil Liability Act 2002 (NSW), ss 5F(1), 5H(1)) – whether respondent contributorily negligent – whether appellant’s failure to warn of risk caused respondent’s injuries Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5H Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482
Hackshaw v Shaw (1984) 155 CLR 614
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) ATR 81-952
Laoulach v Ibrahim [2011] NSWCA 402
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Ryde City Council v Smith [2003] NSWCA 57
Thompson v Woolworths (Q’land) Pty Limited (2005) 221 CLR 234; [2005] HCA 19
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9Texts Cited: Australian Standard, Interior lighting (AS 1680.1-1990) Category: Principal judgment Parties: Ratewave Pty Limited (Appellant)
Bjorn J Illingby (Respondent)Representation: Counsel:
Solicitors:
RA Cavanagh SC with SJ Walsh (Appellant)
AJ Stone SC with JB Masur (Respondent)
Thompson Cooper Lawyers (Appellant)
Schreuder Partners Lawyers (Respondent)
File Number(s): 2016/5937 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Civil
- Citation:
- [2015] NSWDC 302
- Date of Decision:
- 18 December 2015
- Before:
- Levy SC DCJ
- File Number(s):
- 2012/188752
HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent was injured when he tripped over the corner of a raised timber platform while walking across a hotel lobby. The respondent brought proceedings in negligence against the appellant occupier of the hotel.
At first instance, the primary judge found that the respondent did not see the raised platform before he tripped as he was affected by “intense glare” from a window, which was in the direction in which he was walking. The primary judge found the risk of tripping on the raised platform was foreseeable and…
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Details
- AGLC
- Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103
- Case
- [2017] NSWCA 103
- Decision Date
CaseChat Overview and Summary
Ratewave Pty Ltd appealed a decision of the primary judge who found it liable for injuries sustained by BJ Illingby. Illingby tripped and fell over the corner of a raised timber platform in the lobby area of Ratewave's hotel. The primary judge had determined that Illingby did not see the platform due to intense glare in the lobby.
The appeal raised several legal issues. The court was required to consider whether the primary judge erred in finding that Illingby was affected by glare. Further, it needed to determine whether, absent a finding of glare, Ratewave breached its duty as an occupier by failing to warn of the tripping risk. This involved assessing whether the risk was "obvious" such that no duty to warn arose under the *Civil Liability Act 2002* (NSW). Finally, the court had to consider whether Illingby was contributorily negligent and whether Ratewave's alleged failure to warn caused Illingby's injuries.
The appellate court upheld the primary judge's findings. It found no error in the conclusion that glare affected Illingby's perception of the platform. The court reasoned that the platform's corner presented a foreseeable risk of injury, and Ratewave had failed to take reasonable steps to mitigate this risk, such as by providing adequate lighting or warnings. The risk was not considered so obvious as to negate the duty to warn. The court also found that Illingby's contributory negligence was not established to a degree that would alter the outcome.
The appeal was dismissed, and Ratewave was ordered to pay the costs of the appeal.
The appeal raised several legal issues. The court was required to consider whether the primary judge erred in finding that Illingby was affected by glare. Further, it needed to determine whether, absent a finding of glare, Ratewave breached its duty as an occupier by failing to warn of the tripping risk. This involved assessing whether the risk was "obvious" such that no duty to warn arose under the *Civil Liability Act 2002* (NSW). Finally, the court had to consider whether Illingby was contributorily negligent and whether Ratewave's alleged failure to warn caused Illingby's injuries.
The appellate court upheld the primary judge's findings. It found no error in the conclusion that glare affected Illingby's perception of the platform. The court reasoned that the platform's corner presented a foreseeable risk of injury, and Ratewave had failed to take reasonable steps to mitigate this risk, such as by providing adequate lighting or warnings. The risk was not considered so obvious as to negate the duty to warn. The court also found that Illingby's contributory negligence was not established to a degree that would alter the outcome.
The appeal was dismissed, and Ratewave was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
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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