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Wright v Perpetual Limited

Wright v Perpetual Limited

Case [2011] NSWDC 37 15 June 2011

Negligence

Contributory Negligence

Compensatory Damages

Assessment of Damages

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Wright v Perpetual Limited & Ors [2011] NSWDC 37
Hearing dates: 29, 30 November 2010, 21 January and 11 March 2011
Decision date: 15 June 2011
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
1.The plaintiff's damages are assessed in the sum of $480,319.85;
2.After apportioning the plaintiff's contributory negligence and the defendant's negligence in the ratio 40 per cent : 60 per cent, verdict and judgment is entered in favour of the plaintiff in the amount of $288,191.91;
3.The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
4.The exhibits may be returned;
5.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - occupier's liability - plaintiff injured after tripping over a low cut vestigial tree stump located in a raised garden bed used as an access route within a shopping centre cark park - whether injury was due to negligence of the occupiers of the premises - considerations for liability under the provisions of the Civil Liability Act 2002 - whether there was contributory negligence on the part of the plaintiff; DAMAGES - assessment of multiple heads of damage
Legislation Cited: Civil Liability Act 2002, ss 5B - 5H
Evidence Act 1995, s 60
Cases Cited: Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) CLR 512
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 4
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Shaw v Thomas [2010] NSWCA 169
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Woolworths Limited v Strong & Anor [2010] NSWCA 282
Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40
Category: Principal judgment
Parties: Rosemary Wright (Plaintiff) Perpetual Limited (First defendant)
Charter Hall Retail Management Limited (Second defendant)
Charter Hall Real Estate Management Services Pty Limited (Third defendant)
Representation: Mr A Lidden SC with Ms M Fraser (Plaintiff)
Mr D Priestley (Defendants)
Brydens…

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.

Continue reading Wright v Perpetual Limited

Details

AGLC: Wright v Perpetual Limited [2011] NSWDC 37
Case: [2011] NSWDC 37
Decision Date: 15 June 2011

CaseChat Overview and Summary

The plaintiff, Wright, instituted proceedings against the defendant, Perpetual Limited, claiming damages for injuries sustained after tripping over a low cut vestigial tree stump located in a raised garden bed used as an access route within a shopping centre car park. The case was heard in the Supreme Court of New South Wales. The plaintiff contended that the defendant, as the occupier of the premises, was negligent in maintaining the area, and as such, was liable for the injuries suffered. The defendant, on the other hand, argued that the plaintiff was contributorily negligent for not paying proper attention to her surroundings, and therefore, should bear some responsibility for the incident.

The legal issues before the court were whether the defendant's negligence contributed to the plaintiff's injury and, if so, to what extent. The court also had to determine the appropriate assessment of damages for the plaintiff's injuries, taking into account both parties' contributory negligence. The court considered the relevant provisions of the Civil Liability Act 2002, which outlines the principles of liability for occupiers of premises and the assessment of damages.

The court found that the defendant was indeed negligent in maintaining the area, as the low cut tree stump posed a significant tripping hazard. However, the court also determined that the plaintiff was 40% contributorily negligent for not paying adequate attention to her surroundings. After apportioning the plaintiff's contributory negligence and the defendant's negligence in the ratio 40 per cent : 60 per cent, the court entered a verdict and judgment in favour of the plaintiff in the amount of $288,191.91. The court also ordered the defendant to pay the plaintiff's costs on the ordinary basis unless otherwise ordered, and allowed for the exhibits to be returned. The court granted liberty to apply on 7 days notice if further orders were required.

Orders

Orders of the court

1.The plaintiff's damages are assessed in the sum of $480,319.85;

2.After apportioning the plaintiff's contributory negligence and the defendant's negligence in the ratio 40 per cent : 60 per cent, verdict and judgment is entered in favour of the plaintiff in the amount of $288,191.91;

3.The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

4.The exhibits may be returned;

5.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

Full text does not contain this section.

Citations

AGLC Citation

Wright v Perpetual Limited [2011] NSWDC 37

Most Recent Citation

Leman v HV Operations Pty Limited [2017] NSWDC 113

Cases citing this decision · 1 of 1 shown

Leman v HV Operations Pty Limited
[2017] NSWDC 113 Para 62

…aintiff has chosen an obviously dangerous route (such as a garden bed in a car park rather than the normal pedestrian walkway: Wright v Perpetual Ltd [2011] NSWDC 37 at [103]) may also be relevant.…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

Woolworths Ltd v Strong
[2010] NSWCA 282 Para 1

…her subsequent injury was " more likely than not" due to the breach of duty of care on the part of the defendants: Woolworths Limited v Strong & Anor [2010] NSWCA 282, per Campbell JA, at [70]. Accordingly, I find that the plaintiff has satisfied the legal requirements for establishing causation in these proceeding…
Shaw v Thomas
[2010] NSWCA 169 Para 1

…. This has been determined to involve a slightly more demanding test than that required by an application of the formulation in Shirt : Shaw v Thomas [2010] NSWCA 169 per Macfarlan JA at [44].…
Stojan (No 9) Pty Ltd v Kenway
[2009] NSWCA 364 Para 1

…defendants take reasonable care to protect entrants onto the premises from risks that could be foreseen and avoided : Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA at [90], citing Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614 at page 663. The measure of the discharge of that duty was what a rea…
Soliman v University of Technology, Sydney
[2009] FCAFC 159

…Dunkel [1959] HCA 8; (1959) 101 CLR 298 Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 4 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 Shaw v Thomas [2010] NSWCA 169 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sutherland…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 1

…ted by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40, at [90]; page 48; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [18]. That analysis must proceed in conjunction with the requirements of s 5B of the CL Act .…
Vairy v Wyong Shire Council
[2005] HCA 62 Para 1

…479 , at pp 487 to 488 per Mason, Wilson, Deane and Dawson JJ. The analysis of this question must proceed prospectively : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, per Hayne J at [126], page 46. The analysis must also proceed in accordance with the requirements of s 5B of the CL Act . This r…
Sutherland Shire Council v Henshaw
[2004] NSWCA 386 Para 1

…plaintiff argued that the appropriate analogy for the contributory negligence issue in this case is to be found in Sutherland Shire Council v Henshaw [2004] NSWCA 386, where, on the facts of that case, it was considered that the Trial Judge's finding that the screeching of brakes of a passing vehicle so as to momen…
Brodie v Singleton Shire Council
[2001] HCA 29 Para 1

…he plaintiff. I come to this view after making due allowance for inadvertence : Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) CLR 512, per Gaudron, McHugh and Gummow JJ at [163].…
Daw v Toyworld (NSW) Pty Ltd
[2001] NSWCA 25 Para 1

…the content of the medical evidence, because the plaintiff's evidence and those reports were essentially unchallenged : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.…
Nguyen v Nguyen
[1990] HCA 9 Para 1

…rate of $38 per hour rather than the statutory rate for gratuitous services : Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 : Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245. Based on the current regime, as discounted, I assess the plaintiff's continuing need for domestic services at 10 hours per week.…
Australian Safeway Stores Pty Ltd v Zaluzna
[1987] HCA 7 Para 1

…owed to the plaintiff is a matter that must be evaluated according to the circumstances of the case : Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 , at pp 487 to 488 per Mason, Wilson, Deane and Dawson JJ. The analysis of this question must proceed prospectively : Vairy v Wyo…
Podbrebersek v Australian Iron & Steel Pty Ltd
[1985] HCA 34 Para 1

…ve culpabilities or responsibilities that have relevantly contributed to cause the plaintiff's injury : Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; at [10] . The apportionment must be reasoned, just and equitable.…
Hackshaw v Shaw
[1984] HCA 84 Para 1

…remises from risks that could be foreseen and avoided : Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA at [90], citing Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614 at page 663. The measure of the discharge of that duty was what a reasonable person would, in the circumstances, do by way of res…
Jones v Dunkel
[1959] HCA 8 Para 1

…y of any evidence given by the plaintiff with respect to her injuries or the ongoing disabilities that she described in her evidence : Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. This position has fortified my conclusion that I should accept the evidence of the plaintiff on the issues concerning her injuri…
Wyong Shire Council v Shirt
[1980] HCA 12 Para 1

…ysis for determining whether negligence has been established requires an application of the test formulated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40, at [90]; page 48; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [18]. That analysis must proceed in conjun…
Van Gervan v Fenton
[1992] HCA 54 Para 1

…e value of such services at the conceded commercial rate of $38 per hour rather than the statutory rate for gratuitous services : Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 : Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245. Based on the current regime, as discounted, I assess the plaintiff's continui…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
5B 2 mentions
Evidence Act 1995 (Cth)
60 2 mentions (from Para 1)

Medium Neutral Citation:	Wright v Perpetual Limited & Ors [2011] NSWDC 37
Hearing dates:	29, 30 November 2010, 21 January and 11 March 2011
Decision date:	15 June 2011
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1.The plaintiff's damages are assessed in the sum of $480,319.85; 2.After apportioning the plaintiff's contributory negligence and the defendant's negligence in the ratio 40 per cent : 60 per cent, verdict and judgment is entered in favour of the plaintiff in the amount of $288,191.91; 3.The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 4.The exhibits may be returned; 5.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - occupier's liability - plaintiff injured after tripping over a low cut vestigial tree stump located in a raised garden bed used as an access route within a shopping centre cark park - whether injury was due to negligence of the occupiers of the premises - considerations for liability under the provisions of the Civil Liability Act 2002 - whether there was contributory negligence on the part of the plaintiff; DAMAGES - assessment of multiple heads of damage
Legislation Cited:	Civil Liability Act 2002, ss 5B - 5H Evidence Act 1995, s 60
Cases Cited:	Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) CLR 512 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 4 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 Shaw v Thomas [2010] NSWCA 169 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Woolworths Limited v Strong & Anor [2010] NSWCA 282 Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40
Category:	Principal judgment
Parties:	Rosemary Wright (Plaintiff) Perpetual Limited (First defendant) Charter Hall Retail Management Limited (Second defendant) Charter Hall Real Estate Management Services Pty Limited (Third defendant)
Representation:	Mr A Lidden SC with Ms M Fraser (Plaintiff) Mr D Priestley (Defendants) Brydens…