Jane Luu v Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza and another [2006] NSWDC 116

New South Wales District Court

CITATION: Jane Luu v Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza and another [2006] NSWDC 116

HEARING DATE(S): 16 June 2005 - 17 June 2005

JUDGMENT DATE: 24 February 2006

JURISDICTION: Civil

JUDGMENT OF: Neilson DCJ at 1

DECISION: Verdict and judgment for the plaintiff against the first defendant; Verdict and judgment for the second defendant against the plaintiff; Verdict and judgment for the cross-defendant against the cross-claimant; Order the first defendant to pay the plaintiff's costs, including costs payable by the plaintiff to the second defendant; Order plaintiff to pay the second defendant's costs; Order cross-claimant to pay the cross-defendant's costs

CATCHWORDS: Occupier's liability - Trip and fall in a carpark owned by shopping centre owner but let to Council - Who was occupier? - Whether occupier liable for defect in concrete between a raised kerb and a sloping ramp - David Jones Ltd v Bates [2001] NSWCA 233 - Turnbull v Alm [2004] NSWCA 173

CASES CITED: David Jones Ltd v Bates [2001] NSWCA 233 Turnbull v Alm [2004] NSWCA 173

Jane Luu (plaintiff) PARTIES: Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza (first defendant / cross-claimant) Fairfield City Council (second defendant / cross-defendant)

FILE NUMBER(S): 4932/03

E. Welsh (for plaintiff) COUNSEL: R. Sheldon (for first defendant / cross-claimant) W. Reynolds (for second defendant / cross-defendant)

JUDGMENT

1 His Honour: The Plaintiff, Mrs Jane Luu of St John's Park, brings an action for damages for personal injury suffered by her on 4 July 2002 when she tripped and fell in what is known as the "Woolworths Carpark", part of the "Cabramatta Plaza" at Cabramatta. Her cause of action is in negligence. She brings that the action against two defendants, Bernard Chan Nominees Pty Ltd, the owner of Lot 13 in DP731003 on which stands both the buildings known as the "Cabramatta Plaza" and the "Woolworths Carpark" ("the owner") and Fairfield City Council to whom the owner granted a lease commencing on 1 July 1994 over the outdoor area of the lot open to the public known as the "Woolworths Carpark" ("the Council"). The plaintiff alleges that both the owner and the Council were the occupiers of the area where she tripped and fell. The major tenant of Cabramatta Plaza is a Woolworths supermarket and the Council erected signs identifying the carpark as the "Woolworths Carpark", but Woolworths has no involvement in the current matter. I shall refer to the "Woolworths Carpark" as "the carpark".