NICOLAOU v SMITH [1989] NSWCA 154

NICOLAOU v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 6 March 1989, 7 March 1989 [1989] NSWCA 154

NEGLIGENCE — the duty of care owed to customers by the occupier of a modest fruit market does not entail "constant supervision" to detect the presence of vegetable matter on the floor — new trial ordered limited to liability. ORDERS 1. Appeal allowed; 2. Judgment of Judge Walsh set aside; 3. In lieu thereof, order that there be a new trial had in the District Court limited to the issue of liability 4. Order that the assessment of damages, subject to re-adjustments for interest, stand as the amount of any judgment which the plaintiff/respondent might recover hereafter; 5. Order that the costs of the first trial abide the costs of the second. 6. Order the Respondent to pay the Appellant's costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951.

Samuels JA On 17 January 1980 the plaintiff, then a sixty eight year old pensioner and part-time tea person, bought a pineapple in a fruit and vegetable shop occupied by the defendants in the Eastlakes Shopping Centre. Having selected her pineapple she took it in her right hand to the cash register, or to one of two cash registers, with her purse and her money in her other hand.

According to her own account of the incident, she was standing firmly planted, stationary and upright when she skidded and fell on her hip, sustaining a fracture of the neck of her right femur. She felt, as she said in evidence, that she stepped on something but was unable to identify what it was. However, her husband, who was behind her and who saw her fall, saw a piece of green vegetable material close by her. He did not draw any attention to it or examine it but it may be inferred, since the learned Judge, Judge Walsh, accepted his evidence, that it was upon that piece of green vegetable matter that the plaintiff stepped and skidded.