Whitton v Dexus Funds Management Limited - [2019] NSWDC 579

District Court

New South Wales

Medium Neutral Citation: Whitton v Dexus Funds Management Limited [2019] NSWDC 579
Hearing dates: 19-23 August 2019; 4-5 September 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to apply to seek a different cost order to that in (2).
(4) Exhibits to be returned after 28 days.

Catchwords: Torts – negligence – plaintiff struck by mobility scooter being driven in a shopping centre – whether defendant shopping centre operator breached a duty of care owed to the plaintiff – whether warnings required by signs due to a hoarding near an amenities corridor – whether convex mirrors needed – whether a barrier needed - causation – degree of economic loss of plaintiff – whether an amount for domestic assistance should be awarded
Legislation Cited: Civil Liability Act 2002 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulations 2011 (NSW)
Cases Cited: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Bruce v Apex Software Pty Ltd [2018] NSWCA 330
Graham v Baker (1961) 106 CLR 340
Gulic V Angelovski [2018] NSWCA 161
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Lloyd v Thornbury [2019] NSWCA 154
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253
Metro North Hospital and Health Service v Pierce [2018] NSWCA 11
Penrith City Council v Parkes [2004] NSWCA 201
Reece v Reece [1994] NSWCA 259
Sretenovic v Reed [2009] NSWCA 280
Strong v Woolworths Ltd (2012) 246 CLR 182
Wallace v Kam (2013) 250 CLR 375
White v Benjamin [2015] NSWCA 75
Category: Principal judgment
Parties: Maree Whitton (Plaintiff)
Dexus Funds Management Limited (Defendant)
Representation:
Counsel:
I Roberts SC and S Tzouganatos (Plaintiff)
N Polin SC (Defendant)
Solicitors:
Turner Freeman (Plaintiff)
McCabe Curwood (Defendant)

File Number(s): 2018/00252240

Judgment

In these proceedings, the plaintiff, Maree Whitton, brings a claim against the defendant, Dexus Funds Management Ltd, the operator of the Deepwater Plaza Shopping Centre at Woy Woy in New South Wales, in relation to personal injuries suffered by the plaintiff on 17 July 2016 when she was struck from behind by a third party driving a mobility scooter in the shopping centre. No claim is brought against the driver of the mobility scooter. The proceedings are brought under the Civil Liability Act 2002 (NSW) (“CLA”).
It is not in dispute that the defendant owed the plaintiff a duty of care or that the plaintiff suffered serious injuries to her leg in the accident. The defendant has denied liability and asserts that the injuries were caused by a combination of the negligence of the person driving the mobility scooter, Ms Connolly, and the plaintiff's own failure to exercise reasonable care for her own safety.
Accordingly, the issues to be determined are:

What was the duty of…

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: [2019] NSWDC 579
Decision Date: 18 October 2019

CaseChat Overview and Summary

The case of Whitton v Dexus Funds Management Limited involved a plaintiff who was struck by a mobility scooter while in a shopping centre, operated by the defendant. The plaintiff argued that the defendant had breached a duty of care by not providing adequate warnings or safety measures, such as signs, convex mirrors, or barriers near an amenities corridor, which led to the accident. The court was tasked with determining whether the defendant was negligent and if the lack of safety measures contributed to the plaintiff's injuries. Additionally, the court considered the degree of economic loss incurred by the plaintiff and whether an award for domestic assistance was warranted.

The court examined the legal principles of duty of care, foreseeability of harm, and the standard of care expected from the defendant. It evaluated the evidence regarding the adequacy of the warnings and safety measures in place at the time of the accident. The court also assessed the plaintiff's claims of economic loss and the necessity for domestic assistance. In its analysis, the court determined that the defendant had not breached any duty of care, as the safety measures in place were reasonable and sufficient. The court found that the plaintiff's injuries were not directly caused by any lack of warning or safety measures provided by the defendant.

Following the court's reasoning, it concluded that the defendant was not liable for the plaintiff's injuries. The judgment was in favour of the defendant, and the plaintiff was ordered to pay the defendant's costs of the proceedings. The court granted liberty to the parties to apply for a different cost order if necessary. The exhibits were to be returned after 28 days.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to apply to seek a different cost order to that in (2).

(4) Exhibits to be returned after 28 days.

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:	Whitton v Dexus Funds Management Limited [2019] NSWDC 579
Hearing dates:	19-23 August 2019; 4-5 September 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply to seek a different cost order to that in (2). (4) Exhibits to be returned after 28 days.
Catchwords:	Torts – negligence – plaintiff struck by mobility scooter being driven in a shopping centre – whether defendant shopping centre operator breached a duty of care owed to the plaintiff – whether warnings required by signs due to a hoarding near an amenities corridor – whether convex mirrors needed – whether a barrier needed - causation – degree of economic loss of plaintiff – whether an amount for domestic assistance should be awarded
Legislation Cited:	Civil Liability Act 2002 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulations 2011 (NSW)
Cases Cited:	Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Graham v Baker (1961) 106 CLR 340 Gulic V Angelovski [2018] NSWCA 161 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Penrith City Council v Parkes [2004] NSWCA 201 Reece v Reece [1994] NSWCA 259 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75
Category:	Principal judgment
Parties:	Maree Whitton (Plaintiff) Dexus Funds Management Limited (Defendant)
Representation:	Counsel: I Roberts SC and S Tzouganatos (Plaintiff) N Polin SC (Defendant) Solicitors: Turner Freeman (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2018/00252240