BELOVUKOVIC v KOTSIPOULOS, t/as WESTFIELD RESTAURANT [1988] NSWCA 16

BELOVUKOVIC v KOTSIPOULOS, t/as WESTFIELD RESTAURANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MCHuGH JJA 26 May 1988, 26 May 1988 [1988] NSWCA 16

Appeal from District Court — Plaintiff slipped on slippery floor in restaurant -Judge held area should have been "barricaded" — approach to that question held wrong — Appeal upheld — New trial ordered. ORDERS (1) Appeal upheld. (2) Judgment below set aside. (3) Matter returned to the District Court for a general new trial. (4) Costs of the first trial to abide the result of the second trial. (5) Respondents to pay the appellant's costs of the appeal and are entitled to a certificate under the Suitors' Fund Act.

Mahoney JA On 28 January 1986 the plaintiff slipped and fell in the defendant's coffee shop. He was injured. The plaintiff sued the defendant at negligence. The learned trial judge, in a carefully written judgment, found for the defendant. The plaintiff has appealed to this Court against his Honour's judgment.

The basic facts are not substantially in dispute. It is accepted that the plaintiff and his friend, Mr Djukic, went into the defendant's coffee shop somewhere between 5 and 6 pm, and went to, as has been described, their favourite table towards the back of the shop. Either then or subsequently (a matter to which I shall refer) the plaintiff slipped on the floor, which was then being washed by the defendants. The plaintiff says that, in fact, he had gone into the shop and sat down or attempted to sit down and then decided to go next door to the Totalisator Agency Board. He went next door and then, on his way back, slipped on the floor, which, as I have said, was being washed. The wife of the defendant, Mrs Kotsipoulos, also says that, in general terms, that was what happened. The plaintiff's witness, Mr Djukic, also says that is what happened. The son of the defendant, who gave evidence, said - I think this is the proper inference from the evidence - that, in fact, it was when the plaintiff and Mr Djukic were coming into the shop on the first occasion that the plaintiff fell.