COOTES v SHOEYS PTY LTD [1995] NSWCA 96

COOTES v SHOEYS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and POWELL JJA 19 April 1995, 19 April 1995 [1995] NSWCA 96

NEGLIGENCE — EVIDENCE OF — CONCLUSION OPEN TO JURY FACTS: Appellant appealed against finding of no negligence based upon lack of expert evidence.

HELD:

(1) In the absence of expert evidence only, the facts of the case might still leave open to the jury a finding of negligence

ORDERS:

(1) Appeal allowed;

(2) Verdict and judgment below set aside;

(3) Order a retrial on all issues; and

(4) Costs of first trial to abide costs the second trial.

Meagher JA This is an appeal from the verdict by direction given by Phelan DCJ in Newcastle on 14 April 1992.

The plaintiff was a lady, Mrs Sharon Lee Cootes, who at the time was aged twenty-one and worked in the defendant's store. She was usually at the payout counter but on this occasion she was asked to do a job of which she had little prior experience, of stacking the dairy cabinet.

The dairy cabinet consisted of four or five shelves, the top shelf being above her height. In order to stack the top shelf she had to stand on something and the way she did it was to stand on a ledge projecting from the bottom shelf, swivelling around, taking the goods from the trolley and then putting them, with her hand, on the top shelf.

It is not to me altogether surprising that she found herself suddenly having slipped and landed on her buttocks on the floor. She sued for negligence and his Honour granted a verdict by direction on the grounds that there was no evidence of negligence.

Certainly, no expert witnesses were called. It is also true, as Mr McIntyre pointed out, that she was unable to identify any particular reason why she fell. There was no evidence of the material of which the ledge was constructed nor was there any evidence before the jury as to the nature of the surface of the ledge. There was no evidence as to whether the ledge was wet or dry and there was no evidence that the ledge was in any way inherently hazardous.