CORCORAN COAD REAL ESTATE T/AS RICHARDSON AND WRENCH PORT MACQUARIE v STATE BANK OF NEW SOUTH WALES [1996] NSWCA 121

CORCORAN COAD REAL ESTATE T/AS RICHARDSON AND WRENCH PORT MACQUARIE v STATE BANK OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER and COLE JJA

10 July 1996, 10 July 1996 [1996] NSWCA 121

OCCUPIER'S LIABILITY — causation

Cole JA A Mr Horton slipped, fell and suffered injury at about 8.30am on Saturday morning 2 January 1994 when he was walking through Dalhunty's Arcade which runs between Short Street and Horton Street, Port Macquarie. He slipped at the end of the arcade near the Horton Street footpath. Ownership of the arcade is spilt down its centre fine. The premises on the left were owned and occupied by the respondent and those on the right were leased and occupied by the appellant. There was no finding made by the trial judge regarding occupation of the arcade. Sinclair DCJ found that overnight some unknown person had vomited and urinated against the front wall and window of the appellant's premises. Mr Corcoran on arriving at his office on the Saturday morning observed this and instructed an employee to hose away the mess into the gutter. This was done with the employee sweeping excess water into the gutter with a straw broom. Nonetheless the tiled floor surface remained wet. Mr Corcoran knew that, when wet, the tiled surface was slippery. As Sinclair DCJ found, the slippery characteristic of the tiles when wet was conformed by the expert evidence of a Mr Tapner.

Mr Horton fell shortly after the tiled floor was hosed down.

It being a Saturday morning, the bank premises were closed. The bank was thus unaware of the incident, although it was established that the creation of mess in the arcade requiring cleaning in the fashion which occurred was not an unusual occurrence.

Sinclair DCJ found a verdict in Mr Horton's favour against the appellant but dismissed the appellant's fourth party claim against the bank. It is against that dismissal that this appeal was brought.