RYAN v COLES MYER LTD [1995] NSWCA 404

RYAN v COLES MYER LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and POWELL JJA 9 November 1995, 9 November 1995 [1995] NSWCA 404

NEGLIGENCE — proof of causation — cause of fall outside supermarket — whether caused by bolts in footpath — plaintiff does not assert cause — HELD: Verdict for defendant upheld

EVIDENCE — proof of causation of fall — absence of affirmative proof — whether court should draw inference — HELD: It should not — contemporaneous records inconsistent

NEGLIGENCE — slipping and twisting incident outside supermarket — whether caused by plaintiff's foot striking one or both dyna bolts subsequently found as protruding from the edge of the kerb of the footpath outside supermarket — plaintiff in oral evidence declines to nominate bolts as cause for fall — contemporaneous records contain no such assignment — trial judge (Pain DCJ) dismisses plaintiff's action holding that she had not proved that the occupier of the supermarket, by act or omission, had caused her injury — on appeal to the Court of Appeal — HELD: (dismissing the appeal) no error was shown — the evidence failed to establish any link between the bolts and the plaintiff's fall — such a link could not, in the absence of evidence and in the face of contemporary records, be inferred by the court.

EVIDENCE — negligence action — proof of cause of fall — onus on plaintiff- plaintiff fails to assign cause — conflicting theories of cause — whether, in the absence of evidence, the Court could and should draw an inference as to the cause — HELD: It should not.

Clarke JA This appeal concerns a fall by a forty-nine year old woman in the vicinity of the footpath outside the Coles K Mart Store in Fox Street, Ballina. The fall occurred at about 12.55pm on 3 November 1991. She sued the respondent, Coles, claiming that as an occupier of the area of land on which she fell it had been negligent and its negligence caused her injuries which were indeed quite serious.