GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GATTO [1997] NSWCA 128

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GATTO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, BEAZLEY and STEIN JJA 16 April 1997 [1997] NSWCA 128

NEGLIGENCE — occupiers liability — reasonableness of trial judges acceptance of plaintiff's evidence on one matter and disbelief of her evidence on another — no error in trial judge's finding of negligence through breakdown in system of cleaning.

Stein JA This is a liability appeal from a verdict and judgment for the respondent (plaintiff) delivered on 21 June 1996 by Blanch J, the Chief Judge of the District Court. His Honour found the appellant (defendant) negligent and assessed contributory negligence by the plaintiff of 20%. After making the reduction in damages, he gave judgment for the plaintiff in the sum of $110,495.

The grounds of appeal may be summarised as follows:

Grounds | and 2 - there was no or insufficient evidence for his Honour to find the appellant defendant negligent.

Ground 4 - there was no or insufficient evidence for his Honour to have found that the plaintiff complained of slipping on fruit peelings at the time of her injury.

Ground 5 - that there was no or insufficient evidence for his Honour to find that the plaintiff slipped on fruit peelings or other substances at the time of her injury, and, Ground 3 - that his Honour failed to adequately address the reasonableness of the defendant's system of cleaning the area where the plaintiff fell.

On 12 November 1991, the plaintiff was employed by Mr Gabe Meyer as a machinist at a shopping centre known as the Wallaceway at Chatswood. Her employer was a tenant of the centre of which the appellant was the occupier. She had worked for Mr Meyer for around 25 years and was 61 years of age at the time of the accident. Her evidence was that she arrived at work shortly before 7am, had some coffee and started work at 7.30am. Between 8 and 8.30am, she went to the toilet area in the premises, which were toilets which were open to the public from around 9am. It is convenient to continue by quoting some of his Honour's findings of fact. Referring to the plaintiff, His Honour said: