MOUNDALEK v WOOLWORTHS LTD [1997] NSWCA 213

MOUNDALEK v WOOLWORTHS LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and POWELL JJA 4 September 1997, 22 October 1997 [1997] NSWCA 213

NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — APPORTIONMENT BY JURY — Appellant injured by employee of respondent in shopping centre — jury found respondent negligent but apportioned 80% contributory negligence against appellant.

On appeal:

The appellants submitted:

1. there was insufficient evidence to justify the trial judge's decision to allow the issue of contributory negligence to be left to the jury; or, alternatively,

2. the jury's apportionment of 80% contributory negligence against the appellant was unreasonable.

Held: (Powell JA dissenting)

1. There was insufficient evidence before the jury upon which they could be affirmatively satisfied that the appellant had not taken reasonable care for her own safety. The trial judge should therefore have acceded to the appellant's request that the issue of contributory negligence not be left to the jury.

2. It was unnecessary to decide the second ground of appeal.

Cases:

Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Nicholson v Nicholson (1994) 35 NSWLR 308 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529

Mason P I agree with Priestley JA. Priestley JA

Background.

On 19 January 1993 Mrs Moundelak was in the Campsie Shopping Centre using a moving walkway called a travelator. What happened on the travelator led her to bring proceedings claiming damages for negligence from Woolworths Ltd (Woolworths). The proceedings were heard in 1996 before his Honour Judge Twigg QC of the District Court and a jury of four. The jury found that Mrs Moundelak had established negligence by an employee of Woolworths for whom Woolworths was vicariously liable. The jury assessed Mrs Moundelak's damages as $70,000. The jury also found that Woolworths had established that Mrs Moundelak was negligent, that that negligence contributed to her injuries, and that the percentage proportion out of 100 in which Mrs Moundelak had been guilty of contributory negligence was 80%. His Honour Judge Twigg gave judgment for Mrs Moundelak in the sum of $14,000.