Wynn Tresidder Management v Barkho

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NEW SOUTH WALES COURT OF APPEAL

CITATION:
Wynn Tresidder Management v Barkho [2009] NSWCA 149

FILE NUMBER(S):
40220 of 2008

HEARING DATE(S):
5 May 2009

JUDGMENT DATE:
16 June 2009

PARTIES:
Wynn Tresidder Management Pty Ltd - Appellant
Fiona Barkho - Respondent

JUDGMENT OF:
Tobias JA McColl JA Young JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2584 of 2006

LOWER COURT JUDICIAL OFFICER:
Hungerford QC ADCJ

LOWER COURT DATE OF DECISION:
24/4/08

COUNSEL:
RW Washington -  Appellant
CS Leahy SC with AR Reoch - Respondent

SOLICITORS:
Thomas Henry Bray Lawyer - Appellant
Ron Kramer Associates - Respondent

CATCHWORDS:
TORTS – negligence – dangerous premises – duty of care – slip and fall in shopping centre – whether occupier’s duty of care discharged by steps taken by subcontractor cleaners to warn of wet floor and to mop wet areas – relevance of entrant’s inadvertence  TORTS – negligence – causation – whether causal link between occupier’s duty of care and entrant’s slip – occupier’s conduct materially contributed to entrant’s injury  TORTS – negligence – contributory negligence – where entrant did not notice three warning cones on ramp, caution sign or cleaner STATUTES – acts of parliament – enforcement of statutory rights and remedies - whether cl 34 and cl 36 of Occupational Health and Safety Regulation 2001 confer private causes of action on members of public – whether such contrariety between Civil Liability Act 2002 and Occupational Health and Safety Act 2000 and Regulation as to constitute implied repeal – whether claim for breach of statutory duty which is in substance a claim for damages for harm resulting from negligence to be determined in accordance with Civil Liability Act  EVIDENCE – admissibility and relevance – opinion evidence – medical reports –  admitted without objection - weight of evidence  APPEAL AND NEW TRIAL – appeal – excessive or inadequate damages – review of primary judge’s conclusion as to severity of non-economic loss – general principles 

LEGISLATION CITED:
Civil Liability Act 2002
Crimes (Sentencing Procedure) Act 1999
Motor Accidents Compensation Act 1999
Occupational Health and Safety Act 2000
Occupational Health & Safety Regulation 2001

CATEGORY:
Principal judgment

CASES CITED:
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Barkho v Glad Cleaning Services Pty Limited and Others (District Court of New South Wales, Hungerford QC ADCJ, 24 April 2008, unreported)
Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Rep 81 – 830
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Burrum Corporation v Richardson & Gehrmann [1939] HCA 30; (1939) 62 CLR 214
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390
Crystal Wall Pty Ltd v Pham [2005]…

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Details
Case
[2009] NSWCA 149
Decision Date

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by the respondent against the appellant, Wynn Tresidder Management, as the occupier of a shopping centre, and a subcontractor, Moonlight. The respondent slipped and fell on a wet floor in the shopping centre, sustaining injuries. The primary judge found that the subcontractor, Moonlight, had taken reasonable steps to warn of the wet floor and had not breached its duty of care. However, the primary judge found the appellant, Wynn Tresidder Management, liable in negligence.

The legal issues before the court included whether the appellant, as the occupier, had discharged its duty of care to the respondent, a lawful entrant, by the steps taken by its subcontractor to warn of the wet floor and mop the area. The court was also required to consider whether the appellant's conduct materially contributed to the respondent's injury, and whether the respondent's own inadvertence in not noticing the warnings constituted contributory negligence. Furthermore, the court had to determine if clauses 34 and 36 of the Occupational Health and Safety Regulation 2001 conferred private causes of action on members of the public and whether there was an implied repeal of these provisions due to contrariety with the Civil Liability Act 2002.

The court reasoned that the appellant, as the occupier with care, control, and management of the premises, owed an overriding duty to ensure the premises were reasonably safe. It was held that the appellant breached this duty by failing to implement a proper system to address the persisting water leak, which posed a foreseeable risk of injury. The court found that the appellant's failure to intervene by closing the area, arranging an alternative route, or restricting access with barricades or a guard was a unique failure on its part. The court also considered the medical evidence regarding the respondent's injuries and the primary judge's assessment of non-economic loss, finding it to be within a proper discretionary range.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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

Mr Rodgers agreed that it was possible for the second level car park to be closed off with cars being directed to higher levels where parking was available. Primary Judgment The primary judge concluded (at [65]) that the question of breach of duty had to be considered in the context of a persisting water problem during the morning of 5 April 2004 from a structural defect during reconstruction work which was not corrected and posed a foreseeable risk to the safety of persons using the area. The respondent’s case against Moonlight, in the final analysis, was essentially that it failed to warn her of the presence of the risk of water on the tiled floor and failed to take reasonable care for her safety: primary judgment (at [59]). The primary judge found that after he discovered the leak, Mr Nagem had followed the security guard’s instructions to dry the area and had placed three warning cones on the ramp and a caution sign near where he mopped. The primary judge held that it was no part of Moonlight’s responsibility or obligation, nor was it within its authority, to close the area or otherwise barricade it. He found that Mr Nagem could not attend to rectifying the water leak and that he did all he could reasonably in relation to relieving its consequences from a cleaning perspective. He held that Mr Nagem performed his work within the scope of Moonlight’s obligations and within the scope of Glad’s obligations to the appellant. Accordingly, the primary judge held (at [66], [76]) that the case in negligence was not made out as against Moonlight. The respondent’s case in negligence against the appellant was that it breached its duty of care in failing to restrict her access to the area where she fell when it knew or should have known that walking on the wet floor exposed her to a risk of injury; in failing to provide any warning to her by sign or orally, of the presence of water on the floor; in failing to place a rubber mat or similar item at the location of the accident so as to reduce or eliminate the risk of a slip and fall occurring; and generally in failing otherwise to take adequate precautions for her safety. She also alleged the appellant had breached a statutory duty of care it owed her as the controller of the premises relevantly, as pressed at trial, pursuant to cl 34 and cl 36 of the Regulation. The primary judge held (at [67]) that, as the entity with the care, control and management of the Centre, the appellant’s duty of care to the respondent was an over-riding obligation. He concluded that it breached its duty of care by not providing premises which were reasonably safe for persons such as the respondent by reason of the water leaking onto the floor of the premises. While he accepted that the appellant had not become aware of the leak hazard until after the respondent’s fall despite it being reported by Mr Nagem to security, and had, accordingly, issued no instructions to deal with the continuing leak, the primary judge concluded (at [67]): “Clearly, in my view, there was no proper system in place to reasonably attend to the water leak – that was uniquely the failure of Wynn Tresidder. Then the leak having persisted, there was no intervention to take reasonable action such as closing the area to the public, arranging an alternative route, restricting access by barricades or positioning a guard to direct persons, such as the plaintiff, to follow a path free from the water hazard – that, too, was uniquely the failure of Wynn Tresidder”.

Ratio Decidendi

Legal Principle Established

As to non-economic loss, Mr Leahy drew attention to the medical evidence which supported the proposition that the respondent suffered and continued to suffer from significant ongoing disability with her left hand and wrist pain with sensory disturbance, loss of strength and dexterity, post-traumatic tenosynovitis in her left hand with chronic regional pain syndrome with a component of early carpal tunnel syndrome and mild and intermittent pain and stiffness in her lower back consistent with a lumbar strain injury. He also drew attention to the fact that the respondent had been unable to increase her duties as a child care worker which, prior to the accident, had been her intention once her obligations in respect to her own children diminished. He pointed to the fact that the respondent’s physical disabilities arising from the accident inhibited her ability to resume her previous work but that she had undertaken steps to qualify for alternative employment. In those circumstances he contended that the primary judge’s finding of 26 per cent non-economic loss ($35,500) was within a proper discretionary range.Negligence: Consideration As I have said, it was common ground that the appellant was the occupier of the Centre. This status arose from its care, control and management of the premises. By virtue of its power of control, it owed the respondent, as a lawful entrant to the Centre, a duty to take reasonable care to avoid a foreseeable risk of injury. The measure of the discharge of its duty was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487 - 488) per Mason, Wilson, Deane and Dawson JJ, approving the observations of Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 662 – 663); see also Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (at [17] – [18]) per Gleeson CJ (Gaudron J agreeing (at [42])); (at [60]) per Kirby J; (at [112]) per Hayne J (Gaudron J agreeing (at [42])); (at [138]) per Callinan J; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J (Heydon J agreeing). Determining whether the duty had been breached turned upon the probability of the risk occurring, the magnitude of the consequences and the expense or inconvenience of eliminating the risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47) per Mason J. In the assessment of breach, weight had to be given to the expectation that the respondent would exercise reasonable care for her own safety and also to the possibility of “inadvertence” and “thoughtlessness”. However it must also be accepted that while persons exercising reasonable care will be able to avoid injury in some situations, other situations present “a foreseeable risk of harm” even to persons taking such care: Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 (at [160], [163]) per Gaudron, McHugh and Gummow JJ; Dederer (at [45] – [46]) per Gummow J.