Irwin v Salvation Army (NSW) Property Trust & Anor [2007] NSWDC 266

Reported Decision : 6 DCLR (NSW) 178

New South Wales District Court

CITATION: Irwin v Salvation Army (NSW) Property Trust & Anor [2007] NSWDC 266

HEARING DATE(S): 23 April 2007, 24 April 2007, 26 April 2007, 29 October 2007, 30 October 2007 and 31 October 2007; and written submissions on 17 November 2007, 28 November 2007, 30 November 2007, 11 December 2007 and 13 December 2007.

JUDGMENT DATE: 17 December 2007

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Verdict for plaintiff against first defendant in amount of $333,008.76; verdict for plaintiff against second defendant in amount of $255,615.65; verdict for the respective cross-defendants against the cross-claimants on the defendants' cross-claims; each party to bear its own costs of the cross-claims; and parties to be heard on costs of the action and form of orders.

CATCHWORDS: NEGLIGENCE - BREACH OF STATUTORY DUTY - Personal Injury - Workplace accident - Slip and fall on wet tiled floor in kitchen of an aged care facility - Occupier's liability - Liability of an employer in performing contract to provide catering services - Whether occupational health and safety regulations gave rise to right of a personal civil action - Apportionment of fault as between occupier and employer - Effect of pre-existing injuries and ailments - Effect of likely non -work related matters - Modified damages against occupier to recognise proportionate fault of employer - Limitation of damages against employer to past and future economic loss - Assessment of damages

Civil Liability Act 2002,ss 15(3) and 16(2) Civil Procedure Act 2005, ss 56 and 90 Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c) LEGISLATION CITED: Occupational Health and Safety Act 2000, ss 3, 32, 33 and 39A Occupational Health and Safety Regulation 2001, cll 33 and 39 Uniform Civil Procedure Rules 2005, Pt 36 r 36.1 Workers Compensation Act 1987, ss 66,67, 151G, 151H, 151Z(1)(b) and 151Z(2)(c)