Ku v Woolworths Group Limited [2020] NSWDC 506

District Court New South Wales

Medium Neutral Citation: Ku v Woolworths Group Limited [2020] NSWDC 506 Hearing dates: 4 September 2020 Date of orders: 4 September 2020 Decision date: 04 September 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 41-42 Catchwords: PRACTICE AND PROCEDURE – civil proceeding – plaintiff's application to strike out certain paragraphs of the Defence and alternatively, for further and better particulars of the Defence – whether impugned parts of Defence contained positive statements of fact – whether contributory negligence defence properly pleaded and particularised Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Uniform Civil Procedure Rules 2005 (NSW), rr 14.16, 14.18, 14.28, 15.1, 15.5 Cases Cited: Strong v Woolworths Ltd (2012) 246 CLR 182 Texts Cited: Bullen, Leake and Jacob, Bullen and Leake and Jacob's Precedents of Pleadings, 12th ed, 1975 Ritchie's Uniform Civil Procedure New South Wales, LexisNexis Category: Principal judgment Parties: Ms M S Ku (Plaintiff/Applicant) Woolworths Group Limited (Defendant/Respondent) Representation: Counsel: Mr J Thompson for the plaintiff/applicant Mr R Perla for the defendant/respondent

Solicitors: AJB Stevens Lawyers for the plaintiff/applicant HBA Legal for the defendant/respondent File Number(s): 2019/359711 Publication restriction: Nil

Judgment

BACKGROUND 1. This is a 'slip and fall' occupier's liability case in which the plaintiff claims damages from the defendant for personal injuries. The fall allegedly occurred at the Woolworths store in Eastwood on 17 November 2016 at 8:00pm. It is said that the plaintiff slipped on water on the floor which was sourced from a refrigeration unit located on the corner of an aisle. 2. The proceeding commenced on 15 November 2019. The Statement of Particulars identifies alleged injuries to the plaintiff's neck, back, left shoulder and right knee and also an Adjustment Disorder, with associated disabilities. 3. The current interlocutory dispute arises from parts of the defendant's Defence, filed on 1 May 2020. I now turn to identifying, in a summary fashion, the relevant parts. 4. The defendant admitted that a duty of care was owed to the plaintiff but said (at paragraph 12) that the scope of the defendant's duty did not extend to harm caused to the plaintiff. 5. The defendant contested that such duty was breached. Specifically, the defendant pleaded that there was no risk of foreseeable harm or, if there was, the risk was insignificant (paragraph 9). It also contended that a reasonable person would not have taken the precautions alleged by the plaintiff, and/or that they would have been prohibitive (paragraph 10). 6. The defendant also denied that that any such breach caused the plaintiff personal injuries. Specifically, the defendant said that the precautions were not a necessary condition of harm to the plaintiff (paragraph 11). 7. It also says relies upon provisions in the Civil Liability Act 2002 (NSW) to contend that injuries from the accident were the manifestation of an obvious risk. It also pleads contributory negligence. One of the particulars to that defence was that the plaintiff failed to observe the presence of a hazard (particular (c) to paragraph 15). 8. The defendant also put in issue whether, on the assumption that she suffered personal injuries from the breach, she would be entitled to damages for non-economic loss (paragraph 19). 9. On 11 May 2020, the plaintiff requested what the plaintiff's solicitor described as "further and better particulars" of the parts of the Defence I have described with specific paragraph references. 10. The next day, the solicitor for the defendant sent an email to the plaintiff's solicitor containing the following concession: "If the floor did not have any anti-slip tiles and was in fact contaminated as alleged, which is not admitted, in the manner alleged, which is also not admitted, then the defendant concedes that the floor would have been slippery." 1. On 5 June 2020, the defendant's solicitor responded to the plaintiff's request for particulars made on 11 May 2020. I think it is fair to say that, with the exception of its response on the particular of contributory negligence to which its attention had been drawn (the particular to 15(a) of the Defence), very little new information was furnished. Thereafter, the parties engaged in disputation as to the adequacy of the defendant's solicitors' response. 2. On 16 July 2020, the plaintiff filed a notice of motion. It seeks to strike out parts of the defendant's Defence or, alternatively, have more adequate answers supplied to the plaintiff's requests for particulars concerning paragraphs 9, 10, 11, 12, 15(c) and 19 of its Defence. 3. Subsequent to the plaintiff filing the motion, on 23 July 2020, the defendant's solicitor provided further information concerning these paragraphs. In essence, in respect to each of these paragraphs, it maintained its position that what was truly sought by the plaintiff were matters for evidence. In relation to paragraph 19 of its Defence, however, the defendant's solicitor indicated that it did not press the content of that paragraph, although it did not concede any entitlement in the plaintiff to recover non-economic loss. 4. In support of its application, the plaintiff relied upon the affidavit of its solicitor, Mr El-Jradi sworn on 16 July 2020. Its Counsel also supplied the Court with written submissions, which I have considered. The defendant relied upon an affidavit from its solicitor, Mr Perrein, affirmed on 31 July 2020.