AVNEY v GWYNVILLE CAROUSEL PTY LTD [1989] NSWCA 15

AVNEY v GWYNVILLE CAROUSEL PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, PRIESTLEY and CLARKE JJA 3 April 1989, 11 May 1989

[1989] NSWCA 15

NEGLIGENCE — plaintiff slips and injures herself on ramp leading out of shopping centre — proceedings against occupier statement of claim alleges occupier-invitee duty — Hackshaw v Shaw (1984) 155 CLR 614; Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 decided after commencement of proceedings and before trial — plaintiff asks trial judge to decide case on general duty of care — he holds difficult to see how breach of duty of care could be demonstrated in terms other than the formula in Indermaur v Dames (1866) LR ICP 274 — does not apply Donoghue v Stevenson (1932) AC 562 duty — enters judgment for defendant.

APPEAL — between judgment and hearing of appeal Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 decided — in Court of Appeal held that on proper findings of fact plaintiff should succeed on liability — (i) on basis of Donoghue v Stevenson duty — (ii) on basis of Indermaur v Dames duty, as understood in light of High Court's statement of principle in Australian Safeway Stores.

Priestley JA Mrs Avney ("the plaintiff') claimed in proceedings in the SupremeCourt that she had slipped in premises known as the "Carousel Shopping Centre" and suffered injury as a result. She further claimed that the damage she suffered was caused by the negligence of the occupant of the premises, Gwynville Carousel Pty Limited ("the defendant") and that that company was therefore liable to pay her an appropriate award of damages. Roden J dismissed her claim, and she appealed to this Court.

The evidence at the trial. In her evidence in chief the plaintiff said that on 28 May 1980, at about 8.30 in the morning, she parked her car in the car park of the Carousel Shopping Centre and then went up an escalator; after she stepped off the escalator she took two or three steps towards the city level, to the street level; slipped and fell on her knee; this happened "about, before just about at the part where the ramp started sloping towards street level... About three steps away from the escalator as I stepped off the escalator." The plaintiff thought this distance was about one and a half metres. The surface she stepped on to from the escalator was a pebbly-finished concrete, at first level and then "sloping after about one and a half metres".