Strike v Fiji Resorts Limited - [2012] NSWSC 1271

Supreme Court

New South Wales

Medium Neutral Citation: Strike v Fiji Resorts Limited & Anor [2012] NSWSC 1271
Hearing dates: 18 and 19 September 2012
Decision date: 25 October 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Verdict for the Plaintiff. Parties to bring in short minutes.

Catchwords: TORTS - Negligence - personal injury - overseas resort - guest slipped on wet stairs - whether resort negligent - whether sufficient proof of occupier - whether contributory negligence - damages - pre-existing medical conditions exacerbated by accident - economic loss - gratuitous attendant care - out of pocket expenses - non-economic loss - costs.
Legislation Cited: Civil Liability Act 2002 - s 5B, s 5C, s 5D, s 5R, s 13, s 16
Cases Cited: - Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
- Bullock v London General Omnibus Co [1907] 1 KB 264
- Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
- Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161
- Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
- Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331
- Novakovic v Stekovic [2012] NSWCA 54
- Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
- Sanderson v Blyth Theatre Co [1903] 2 KB 533)
- Sibraa v Brown [2012] NSWCA 328
- State of New South Wales v Broune [2000] NSWCA 3
- Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
- Strong v Woolworths Ltd (t/as Big W) [2012] HCA 5, 86 ALJR 267
- Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
- Watts v Rake [1960] HCA 58; 108 CLR 158
- Wheat v E Lacon & Co Ltd [1966] AC 552
- Woolworths Ltd v Lawlor [2004] NSWCA 209
Category: Principal judgment
Parties: Gay Roslyn Strike (Plaintiff)
Fiji Resorts Limited (First Defendant)
Yanuca Island Limited (Second Defendant)
Representation: Counsel:
M.K. Rollinson (Plaintiff)
G. Foster (Defendants)
Solicitors:
Macquarie Legal (Plaintiff)
Harish Prasad (Defendant)

File Number(s): 2009/297836

Judgment

The plaintiff, Mrs Gay Roslyn Strike, tripped at the foot of a set of stairs at the Shangri-la Fijian Resort, Yanuca, (the "resort") on 26 October 2006. She sues the first and second defendants, Fiji Resorts Limited ("Fiji Resorts") and Yanuca Island Limited ("Yanuca"). She alleges that they were negligent and that their negligence was causative of the damage suffered by her as a result of the fall.

The fall

At the time of the accident Mrs Strike was forty-nine years old. She and her husband had travelled to Fiji to attend their friends' wedding. They were guests at the resort.

In her evidentiary statement Mrs Strike described the events surrounding the fall as follows:

"7. At about 6.30pm on 26 October 2006, I was walking down a stairway inside the hotel complex, which led to the Lagoon Terrace Restaurant. I was with [her husband] and two other friends…

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: [2012] NSWSC 1271
Decision Date: 25 October 2012

CaseChat Overview and Summary

In the case of Strike v Fiji Resorts Limited, the plaintiff, Strike, sued the defendant, Fiji Resorts Limited, for injuries sustained during a holiday at one of the defendant’s resorts. Strike alleged that she slipped on wet stairs at the resort, resulting in injuries that exacerbated her pre-existing medical conditions. The dispute centred on whether Fiji Resorts Limited was negligent in maintaining the stairs, whether there was sufficient evidence to establish the resort as the occupier of the premises, and whether Strike’s own actions contributed to her injuries. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were multifaceted. Firstly, it needed to determine if Fiji Resorts Limited had a duty of care towards Strike as an occupier of the resort and whether this duty was breached by the maintenance of the stairs. Secondly, the court had to consider if there was sufficient evidence to establish the resort as the occupier. Thirdly, it needed to assess whether Strike’s contributory negligence played a role in her injuries. Finally, the court had to address the quantification of damages, including economic loss, gratuitous attendant care, out-of-pocket expenses, and non-economic loss.

The court found that Fiji Resorts Limited was indeed negligent in maintaining the stairs, establishing the resort as the occupier based on the evidence presented. The court ruled that Strike’s contributory negligence was minimal, as she had taken reasonable care for her safety. Regarding damages, the court awarded Strike compensation for economic loss, including medical expenses and lost income, as well as non-economic loss for pain and suffering. The court also considered the cost of gratuitous attendant care and out-of-pocket expenses. Fiji Resorts Limited was ordered to pay the damages and costs of the proceedings.

In conclusion, Fiji Resorts Limited was found liable for the injuries sustained by Strike due to the wet stairs at the resort. The court awarded Strike compensation for economic and non-economic loss, including gratuitous attendant care and out-of-pocket expenses. Fiji Resorts Limited was ordered to pay the awarded damages and the costs of the proceedings.

Orders