Ashfield Realty Pty Ltd t/as Ray White Ashfield v Gomes [2005] NSWCA 216

New South Wales Court of Appeal

CITATION: Ashfield Realty Pty Ltd t/as Ray White Ashfield v Gomes [2005] NSWCA 216

HEARING DATE(S): 24/06/05

JUDGMENT DATE: 24 June 2005

JUDGMENT OF: Mason P at 31 & 36; Ipp JA at 1; Basten JA at 32

DECISION: (1) Appeal upheld with costs (2) Judgment and verdict granted by Quirk DCJ set aside and in lieu thereof substitute an order for judgment and verdict in favour of the appellant (3) Respondent to pay the appellant's costs of the trial (the order for the costs of the trial is not intended to displace the costs order made by her Honour on 28 April 2004 referrable to the motion that was disposed of that day) (4) Respondent to have a certificate under the Suitors' Fund Act 1951 if qualified.

CATCHWORDS: NEGLIGENCE - Occupier's liability - No breach of duty of care. ND

CASES CITED: Thompson v Woolworths Queensland Pty Limited [2005] HCA 19

Ashfield Realty Pty Ltd t/as Ray White Ashfield (Appellant) PARTIES: Esmerelda Gomes (Respondent)

FILE NUMBER(S): CA 40591/04

P Garling SC/K Morgan (Appellant) COUNSEL: L King SC/H Halligan (Respondent)

Riley, Gray-Spencer (Appellant) SOLICITORS: Bielby Poulden Costello (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3365/02

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40591/04 DC 3365/02

MASON P IPP JA BASTEN JA

Friday 24 June 2005 ASHFIELD REALTY PTY LTD T/as RAY WHITE ASHFIELD v ESMERELDA GOMES Judgment 1 IPP JA: This is an appeal against a verdict and judgment granted by Quirk DCJ in an action brought by the respondent against the appellant for damages for personal injuries. Her Honour found that the appellant had negligently caused the respondent to suffer damages and granted a verdict and judgment in the respondent's favour in the sum of $242,743.06. 2 The respondent was injured when she fell off a chair in the reception area of the appellant's offices where it carried on business as a real estate agent. The respondent had visited the appellant to make enquiries about three-bedroom residential units. The person who would have attended to the respondent was busy and the appellant's receptionist, Ms Nelmida, asked the respondent to wait and, in the meantime, to take a seat. When the respondent put her weight on the chair in which she intended to sit, it tipped forward and she slipped off and fell on the ground. This fall caused her to suffer injuries. 3 Quirk DCJ found that the chair "posed a risk of injury to customers". This was because of a feature of its design that rendered it unstable when a person sitting on it leant forwards or sat towards the front of the seat. This design defect resulted from a radius on the leading edge of the base of the chair and can best be understood from a description of the chair given by Mr Green, an expert called by the respondent. Mr Green described the chair as follows: "The chair is of rigid steel construction, the frame constructed of two chrome-plated flat steel members which are formed in a manner as to provide a flat base, a vertical member and a horizontally aligned surface which serves as an armrest and supports the backrest. The two flat steel members are joined by a flat steel spacer, which is welded to each base member. The seat and back supports are fully upholstered over a polyurethane cushion supported by a plywood seat, pan and back support."