WINDANG BOWLS CLUB LTD v TAMMJARV [1989] NSWCA 237

WINDANG BOWLS CLUB LTD v TAMMJARV SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, MAHONEY JA and Hope AJA 31 August 1989, 8 September 1989

[1989] NSWCA 237

NEGLIGENCE — occupier of bowling club — tiles on floor of verandah slippery when wet — whether unreasonable to expect occupier to take steps to protect persons against the possibility of slipping on tiles — held: (Dismissing appeal from Badgery-Parker DCJ) To impose such a requirement is not unreasonable.

Phillis v Daly (1988) 15 NSWLR applied;

Hackshaw v Shaw (1984) 155 CLR 614 and Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 referred to. APPEAL - evidence of witnesses - credibility - which witness is to be believed - held:

No error of approach by the trial judge - no question of principle. ORDER Appeal dismissed with costs.

Kirby P I agree with Mahoney JA.

Mahoney JA On 21 or 22 June 1985 the plaintiff slipped and fell whilst leaving the defendant's club house. The plaintiff sued the club for damages on the ground that it had been negligent. On 8 June 1988 Badgery-Parker DCJ, as he was, found for the defendants in negligence, held the plaintiff 15 per cent responsible, and gave judgement for her for $25,029.87.

The defendant has appealed to this Court against his Honour's findings as to liability. An appeal as to damages has not been pursued.

The plaintiff's claim was that she left the club through the main entrance onto a tiled verandah; that the floor of the verandah was not fully protected from the weather; that the tiles on the floor of the verandah were wet; that by reason of their wetness they were slippery; and that she slipped on the wet tiles and fell. The plaintiff had been at the club for some time prior to leaving and had consumed some alcohol. His Honour held that she was to some degree affected by it and this provided the basis for her partial responsibility for what happened. However, his conclusion was that the major responsibility lay with the club.