McDONALDS AUSTRALIA LIMITED v SALAMEH [1997] NSWCA 198

McDONALDS AUSTRALIA LIMITED v SALAMEH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and STEIN JJA, and BROWNIE AJA

22 May 1997, 22 May 1997

[1997] NSWCA 198

NEGLIGENCE — APPEAL AGAINST FINDING OF NEGLIGENCE

NEGLIGENCE — APPEAL AGAINST FINDING OF NEGLIGENCE — On appeal the appellant argued: (1) the trial judge erred in finding that the appellant was negligent in the way that it positioned a soap dispenser in the toilet of its premises; and, (2) there was no causative link between the positioning of the soap dispenser and the respondent's injury. Held: (1) on the evidence before him, and on the basis of common experience, the trial judge was entitled to make the findings which he did with respect to the negligence of the appellant; and, (2) along with his reference to the positioning of the dispenser, the trial judge clearly had in mind that it was the combination of circumstances, including the cramped layout of the toilet, which constituted negligence on the part of the appellant.

Priestley JA This appeal is one brought against a judgement given by his Honour Judge Kirkham in the District Court on 2 July 1996 in favour of the plaintiff in the sum of $73,643.62 for damages for negligence. The judge rejected a claim by the appellant that the plaintiff had been guilty of contributory negligence. The appeal is against the finding of negligence only, not the amount of damages and nor, as the matter has been argued orally today, against the judge's conclusion concerning contributory negligence.

The plaintiff was injured in the appellant's restaurant at Hurlstone Park at 9.30am on Sunday, 17 July 1994. She had gone there with her three children. The restaurant was busy. There were many other children. After some time in the restaurant, the plaintiff went to the female toilet. She washed her hands at one of two hand-basins. She then entered the toilet cubicle nearest the hand-basins to take some toilet paper from the dispenser there to dry her hands.