South Eastern Sydney and Illawarra Area Health Service v O'Rourke [2005] NSWCA 200

New South Wales Court of Appeal

CITATION: South Eastern Sydney and Illawarra Area Health Service v O'Rourke [2005] NSWCA 200

HEARING DATE(S): 7 June 2005

JUDGMENT DATE: 23 June 2005

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Hunt AJA at 3

DECISION: 1 The appeal is dismissed.; 2 The appellant is to pay the respondent's costs of the appeal, such costs before and on 20 May 2005 to be assessed on a party and party basis and thereafter on an indemnity basis.

CATCHWORDS: Slipping case - brick pavers at entrance to hospital emergency department - mossy substance (cryptogams) between and above bricks - fall in rain and at night-time - plaintiff unable to identify which paver she slipped on - plaintiff's husband next morning saw cryptogams "scattered" over area where plaintiff fell - whether particular cryptogams slippery when wet - examination of area by expert long time after event - evidence that conditions of cryptogams the same both times - whether open to judge to find wet cryptogams cause of slip - main contributing factors to slipping accidents - whether wet cryptogams obvious risk.

Civil Liability Act 2002 LEGISLATION CITED: Health Services Act 1997

CASES CITED: March v E & M H Stramore Pty Ltd (1991) 171 CLR 506

South Eastern Sydney and Illawarra Area Health Service PARTIES: Patricia Mary O'Rourke

FILE NUMBER(S): CA 40289 of 2004

P R Garling SC, R Sergi (Appellant) COUNSEL: D Campbell SC, S Longhurst (Respondent)

Frances Allpress Sydney (Appellant) SOLICITORS: Russell McClelland Brown Wollongong (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 93 of 2002