Corliss v Adams [1999] NSWSC 948

New South Wales Supreme Court CITATION : Corliss v Adams [1999] NSWSC 948 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 21272/95 HEARING DATE(S) : 30-31 August 1999 JUDGMENT DATE : 23 September 1999

PARTIES : Lorraine Beverley Corliss (Plaintiff) Ken Adams (Defendant) JUDGMENT OF : Studdert J

COUNSEL : A. Lucas (Plaintiff) I.D. Cullen (Defendant) SOLICITORS : I. & R. Brydens Law Office (Plaintiff) Ferguson Holz (Defendant) CATCHWORDS : Negligence; occupier's liability for condition of grounds surrounding hotel; whether contributory negligence; issue as to accident date; whether plaintiff's claim statute barred. ACTS CITED : Choice of Law (Limitation Periods) Act 1993 (NSW) Limitation of Actions Act 1974 (Qld) DECISION : See para 95

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Thursday 23 September 1999

21272/95 LORRAINE BEVERLEY CORLISS v KEN ADAMS

JUDGMENT

1 HIS HONOUR: Lorraine Beverley Corliss has sued Ken Adams seeking damages for injury allegedly sustained in a fall at Bucca, near Bundaberg, towards the end of 1992. The precise date of the accident assumes significance for reasons to which I shall presently refer. The plaintiff has sued the defendant as the occupier of the premises where the accident happened. The defendant has pleaded that the action is barred by statute, he has denied negligence and he has raised contributory negligence. 2 The premises in question are known as the Bucca Hotel. The hotel building was described in evidence as having at its rear a grassed area extending to the back fence. There is a gate in that fence affording access to a paddock immediately behind the hotel. This paddock was regularly used for the local horse club's events and the plaintiff's case is that her injury was sustained on the day of one of those horse sports carnivals. 3 According to the plaintiff the accident happened at about 2.00 pm on a date which she fixed as being 6 or 7 December 1992. The plaintiff said that after the events had finished she proceeded from the paddock behind the hotel towards the bar area of the hotel, entering the hotel property through the gate to which I referred. The plaintiff said that having passed through the gate it was necessary for her to veer to the left across the grassed area to the bar of the hotel. The plaintiff was familiar with the hotel, having previously visited it many times. She said that on the day of the accident there were a number of cars parked in that grassed area behind the hotel. The plaintiff described her accident as follows (T 4): "I was walking along and just fell into a hole, or indent in the ground. I thought I'd actually broken my ankle at the time, because I was sure I heard it crack but it turned out that I didn't. I was in the company of another person who I asked for help. They left me sitting on the ground after they had looked at my ankle, went into the hotel and came out with my husband and another person that was in attendance on the day. The young fellow that I was walking across the paddock with, carried me into the hotel into the bar area, sat me down on a chair. They then got a bucket of ice from behind the door, put my foot in the bucket of ice." 4 Whilst sitting on the ground immediately after her fall awaiting assistance, the plaintiff looked at the terrain and described the hole as being a round hole approximately 12 x 12 inches, generally circular with grass that had grown over the top of it. The plaintiff described the hole as being some four to five inches deep and said that she stepped into it with her left foot. 5 In cross examination the plaintiff agreed that there were no clear edges to the depression, and said that her observation after the fall was that it was "an indent in the ground that had been covered by grass". 6 It was put to the plaintiff in cross examination that the area of the accident was one where the grass was long and that she did not know why she fell. The following questions drew the following responses (T 31): "Q. And you don't know whether you tripped, or slipped, or how you fell?