Kelly's (Coleambally) Pty Ltd v Malone [2001] NSWCA 146

New South Wales Court of Appeal

CITATION : Kelly's (Coleambally) Pty Ltd v Malone [2001] NSWCA 146 FILE NUMBER(S) : CA 40149/00 HEARING DATE(S) : 21/05/01 JUDGMENT DATE : 21 May 2001

PARTIES : Kelly's (Coleambally) Pty Ltd v Kaylene Michelle Malone JUDGMENT OF : Mason P at 28; Stein JA at 29; Ipp AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 183/98 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

COUNSEL : J D Hislop QC/G Seib (Appellant) G R Petty SC/A J Black (Respondent) SOLICITORS : McCulloch & Buggy (Appellant) Commins Hendriks (Respondent) CATCHWORDS : TORT - Personal Injury - appeal against liability - respondent injured when she tripped over a dog whilst carrying a box in the course of her employment with the appellant supermarket - failure to warn or instruct of dangers - failure to tether/chain dog - lack of evidence - the dog was known to wander in the area and respondent was aware of this - appellant entitled to have regard to the fact that prudent employees take reasonable care for their own safety - lack of evidence that carrying box obscured her vison to the extent that she could not see the dog move - negligence not established - appeal upheld. ND CASES CITED: Liftronic Pty Limitedv Unver (2001) HCA 24 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 DECISION : Appeal upheld; Verdict set aside; Verdict be entered in favour of the appellant; Respondent's claim be dismissed with costs; Respondent to receive a Suitors Fund certificate if otherwise entitled; Respondent to repay the money that has been paid to the appellant, with interest at Court judgment rates from the date of payment to the date of repayment, the appellant to have liberty to apply.