Milne v SDN Children’s Services and BRC Recruitment Pty Ltd [2024] NSWSC 1495

Supreme Court New South Wales

Medium Neutral Citation: Milne v SDN Children's Services and BRC Recruitment Pty Ltd [2024] NSWSC 1495 Hearing dates: 4 - 6, 8, 25 March 2024, 30 April 2024. Supplementary submissions received on 7 May 2024 Date of orders: 27 November 2024 Decision date: 27 November 2024 Jurisdiction: Common Law Before: Walton J Decision: (1) The plaintiff shall file and serve Short Minutes of Order which reflect this judgment, including the quantification of damages, and further submissions as to the quantification of damages (where leave has been given by the Court in this judgment) together with a program for the receipt of submissions and evidence as to costs and interest on or before 18 December 2024. (2) The defendants shall file and serve any alternative version of the Short Minutes of Order to that served under (1) above, together with any submissions in reply and alternative program for costs and interest (if any) on or before 15 January 2025. (3) The parties shall have liberty to apply to the Court to vary these orders and directions provided such liberty is exercised within 7 days of the date of this judgment. Catchwords: TORTS – Negligence – where plaintiff with pre-existing osteoarthritis in left knee slipped and fell on spilled food in commercial kitchen – where plaintiff subsequently underwent a total knee replacement – where plaintiff working pursuant to labour hire agreement – occupier's liability – non-delegable duty of plaintiff's employer – whether system and place of work made spillage reasonably foreseeable – whether occupier breached duty of care in failing to place non-slip mats in areas in which food spillages were most likely to occur – whether defendants' tortious conduct caused the need for surgery – finding that plaintiff's fall caused material aggravation of her pre-existing osteoarthritis resulting in the need for a total knee replacement. Legislation Cited: Civil Liability Act 2002 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Workers Compensation Act 1987 Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538; [1940] HCA 45 Australian Oil Refinery Pty Ltd v Bourne (1980) 54 ALJR 92 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800 Burton v Brooks [2011] NSWCA 175 Commonwealth v McLean (1996) 41 NSWLR 389 Dunn v Star City Pty Limited [2004] NSWCA 223 EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Jackson v McDonalds' Australia Ltd [2014] NSWCA 162 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2005] NSWCA 305 Marketform Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36 Neindorf v Junkovic [2005] HCA 75 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Nominal Defendant v Livaja [2011] NSWCA 121 Paris v Stepney Borough Council [1951] AC 367 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Rallis v Pang [2003] NSWCA 202 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 Shoalhaven City Council v Pender [2013] NSWCA 210 Stocker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 Synergy Scaffolding Services Pty Ltd V Alelaimat (No 2) [2024] NSWCA 11 Tapp v Australian Bushmen's Campdraft and Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Tubemakers of Australia Ltd v. Fernandez (1976) 50 ALJR 720 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wade v Allsop (1976) 50 ALJR 643 Wang v Fan [2024] NSWSC 1339 Category: Principal judgment Parties: Cheryl Anne Milne (Plaintiff) SDN Children's Services (First Defendant) BRC Recruitment Pty Ltd (Second Defendant) Representation: Counsel: C.T. Barry KC with T Meakes (Plaintiff) N Polin SC (First Defendant) S Flett (Second Defendant) Solicitors: Gorman Jones Lawyers (Plaintiff) McCabes Lawyers (First Defendant) Hall and Wilcox Lawyers (Second Defendant) File Number(s): 2018/382709 Publication restriction: Nil