Mikros v. The Greek Orthodox Aged and Community of Burwood and District St Nectarios Ltd. [2004] NSWCA 384

New South Wales Court of Appeal

CITATION : Mikros v. The Greek Orthodox Aged and Community of Burwood and District St Nectarios Ltd. [2004] NSWCA 384 HEARING DATE(S) : 19 October 2004 JUDGMENT DATE : 19 October 2004

JUDGMENT OF : Beazley JA at 29; Hodgson JA at 1; Tobias JA at 30 DECISION : Appeal dismissed with costs.

CATCHWORDS : TORT - Negligence - Slip on floor in hall - Claim against occupier fails - Whether error by trial judge CASES CITED : Eggins v. Brooms Head Bowling and Recreational Club Limited (1986) Aust.Torts Rep. 80-044 PARTIES : Penny Mikros - appellant The Greek Orthodox Aged and Community of Burwood and District St Nectarios Limited - respondent FILE NUMBER(S) : CA 40989/03 COUNSEL : Miss S. Norton SC with J. Thornton for appellant Mr. K. Rewell SC with M.A. Cleary for respondent SOLICITORS : Bryden's Law Office, Liverpool for appellant Keddies, Sydney for respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC7304/01 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40989/03 DC 7304/01

BEAZLEY JA HODGSON JA TOBIAS JA

Tuesday 19 October 2004 MIKROS V. GREEK ORTHODOX AGED & COMMUNITY OF BURWOOD & DISTRICT ST NECTARIOS LTD. Judgment 1 HODGSON JA: On 10 October 2003, Balla DCJ gave judgment for the respondent in proceedings in which the appellant had sought damages for negligence against it and ordered the appellant to pay the respondent's costs. The appellant appeals from that decision. 2 The appellant's claim arose from an injury to her back, which she sustained when she fell in a hall occupied by the respondent. 3 The appellant was born in 1962 in Cyprus and was thirty-six years old at the time of the accident on 28 November 1998. At that time, she attended a christening at the Greek Orthodox Church at Burwood. A reception followed in the adjoining hall, which was attended by over one hundred and fifty guests. The reception hall was set up with tables and chairs on a carpet, and there was a parquetry area near the entrance and a parquetry area in the dance hall. 4 The music commenced about eight o'clock and continued until about midnight. The appellant joined the dancing at some stage of the evening, and after dancing for some time she ceased dancing and began to walk towards her table. She slipped and fell on to her left elbow and hip. 5 Evidence was led on behalf of the appellant of prior falls and near falls on the night. 6 The appellant gave evidence that she had seen her aunt Aphrodite fall while dancing. 7 Ms Nicholas gave evidence that she slipped but did not fall on arrival at the function, and that this was reported to bar staff. She said the floor was slippery. She also gave evidence that she fell later in the evening when dancing with Ms Tsangaris. 8 Ms Tsangaris gave evidence that, compared to other floors she had seen, the respondent's floor had a high shine, and she also gave evidence of her fall with Ms Nicholas. 9 The mother of the child being christened gave evidence that the floor was quite slippery, very polished and very shiny. 10 There was also in evidence a video of the evening, which showed, among other things, dancing taking place over a period of time, and which showed Ms Nicholas and Ms Tsangaris dancing shortly before their fall. 11 Evidence was given by Mrs Giannopoulos on behalf of the respondent. Her evidence was that there were no records of prior falls. She said the floor was maintained and cleaned by a Mr Kekatos, and that about every two years it was resurfaced and repolished. She also gave evidence that Mr Kekatos applied a special chemical to the floor to stop it being slippery. However, Mr Kekatos was not called in evidence because he was said to be in hospital, although no medical report was produced to support this statement. It appears also that there was a subpoena issued to produce documents concerning the maintenance of the floor, and no such documents were produced. 12 The primary judge gave the following reasons at the end of her judgment in support of her decision in favour of the respondent: I accept the evidence of the plaintiff as to the circumstances of her injury as she was an impressive witness who was clearly doing her best to recall the circumstances surrounding her fall. I also accept the evidence of Ms Nicholas and Ms Tsangaris as to their recollection of their falls. I also accept that Aphrodite slipped as described by the witnesses.