CHERRY v JAYMARDO PTY LTD t/as HOWZAT INDOOR SPORTS AND FITNESS WORLD [1998] NSWCA 57

CHERRY v JAYMARDO PTY LTD t/as HOWZAT INDOOR SPORTS & FITNESS WORLD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY and STEIN JJA 9 February 1998, 20 February 1998 [1998] NSWCA 57

Negligence — Fall on wet steps — Expert evidence — Experts not examined — Whether trial judge entitled to prefer evidence of one expert over another Whether mere fact of fall sufficient to discharge onus of establishing negligence.

This appeal arose out of an incident in which the appellant slipped down steps at a gymnasium at the respondent's premises. The trial judge found that the steps were wet at the time of the accident. The appellant's case was that the material used in the construction of the steps was such as to render them slippery when wet. Both the appellant and the respondent adduced expert evidence by way of tendered reports only. The trial judge appeared to accept the evidence of the respondent's expert. The trial judge concluded that the appellant's injury was caused in circumstances where there was conduct of the appellant which placed her in a particularly hazardous position, and that it was not foreseeable that the accident would have occurred or that the respondent should have taken action to avoid the accident.

HELD, dismissing the appeal:

(1) The trial judge was entitled to prefer the evidence of one witness over another. In a case where there was no testing of the expert's evidence such a preference is not immune from challenge, however, in the circumstances of the case, the trial judge was entitled to choose between the expert evidence.

Abalos v Australian Postal Commission (1990) 171 CLR 167; Ahmedi v Ahmedi (1991) 23 NSWLR 288 considered.

(2) The appellant bore the onus of establishing that the respondent was negligent. The mere fact of a fall on wet steps is not sufficient to do so. As the appellant's expert evidence was not accepted by the trial judge there was no evidence that the respondent was negligent.