McLean v Star City Pty Ltd [2008] NSWDC 143

New South Wales District Court

CITATION: McLean v Star City Pty Ltd [2008] NSWDC 143

HEARING DATE(S): 28-30 April, 1-2, 5-7 May 2008

JUDGMENT DATE: 13 August 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1. Verdict for the defendant. DECISION: 2. The plaintiff is to pay the defendant's costs of the proceedings. This order is suspended until 22 August 2008 to allow either party to list the proceedings for further argument on the issue of costs. 3. Exhibits will be retained for 28 days or until further order.

CATCHWORDS: TORT - fall on escalator - whether caused by mechanical defect - whether defendant's regime for repair and maintenance inadequate - connection between incident and deterioration in pre-existing conditions.

PARTIES: John McLean (Plaintiff) Star City Pty Ltd (Defendant)

FILE NUMBER(S): Newcastle 518/05

COUNSEL: C A W Hart (Plaintiff) M H Best (Defendant)

SOLICITORS: Bale Boshev (Plaintiff) Wotton & Kearney (Defendant)

JUDGMENT

1 On 16 June 2003 an incident occurred on escalator 11 leading to the foyer of the Star City Casino. Mr John McLean, then aged 79, claimed that he fell and suffered injury in the course of that incident.

2 The issues involved in deciding the claim were: 1 The circumstances that caused the plaintiff to fall. 2 Whether those circumstances were the result of the defendant's neglect. 3 The extent to which the plaintiff was injured as a result of the incident. 4 The compensation, if any, to be awarded to the plaintiff.

ISSUE 1 – THE CIRCUMSTANCES OF THE PLAINTIFF'S FALL

3 The plaintiff claimed that the cause of the incident was a malfunction of the handrail on escalator 11.