New South Wales Court of Appeal CITATION: Alessi v Westfield Shopping Centre Management Co Pty Ltd [2009] NSWCA 244 HEARING DATE(S): 3 August 2009 JUDGMENT OF: McColl JA at 1, 13; Basten JA at 12 EX TEMPORE JUDGMENT DATE: 3 August 2009 DECISION: 1. Extension of time to seek leave to appeal granted. 2. Leave to appeal refused with costs. CATCHWORDS: TORTS – negligence – slip and fall – whether leave to appeal should be granted – no question of principle LEGISLATION CITED: Civil Liability Act 2002 (NSW) CATEGORY: Principal judgment Mariano Alessi - Applicant PARTIES: Westfield Shopping Centre Management Co Pty Ltd - First Respondent Gough Bay Group Ltd - Second Respondent FILE NUMBER(S): CA 40025 of 2009 COUNSEL: Applicant in person RA O'Keefe - First Respondent SOLICITORS: Applicant in person Vardanega Roberts - First Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1023/07 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 7/11/08 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40025/09 DC 1023/07 McCOLL JA BASTEN JA Monday 3 August 2009 Mariano Alessi v Westfield Shopping Centre Management Pty Ltd & Anor Judgment ex tempore 1 McCOLL JA: This is an application for leave to appeal from a decision of Hughes DCJ made on 7 November 2008. The applicant also needs an extension of time in which to seek leave to appeal because his notice of intention to appeal while filed on 4 December 2008 was not served within 28 days of the material date. 2 The applicant was unsuccessful in proceedings brought in respect of a fall he suffered on 11 September 2006 on a stationary travelator in the Westfield Shopping Centre at Parramatta which was owned by the respondent. The primary judge found that the applicant failed to establish that the respondent breached its duty of care or that if it had insofar as the provision of non-slip matting was concerned, had not established that that omission was causative of his fall. 3 The applicant also failed at the trial in claims he made against the centre's cleaners. He does not seek leave to appeal in respect of that aspect of the primary judgment. 4 On the day the applicant fell, rain had fallen. His case at trial was that he slipped on grease on the travelator, however the primary judge (at [23]) rejected that case. In oral argument the applicant submits that the travelator was stopped because it was not working and that for that reason there was an obligation on the respondent to erect barricades to prevent entrance to the travelator. The primary judge (at [11] – [12]) did not accept that the applicant had established any reason why the travelator was stopped and in my view, that aspect of the applicant's case could not be pursued. 5 The applicant also appears to have asserted at trial apparently in the alternative that the presence of water on the travelator contributed to his fall, thus the principal issue at trial, as the primary judge identified it, ultimately became whether the respondent had breached its duty as the occupier of the centre to take reasonable care to avoid a foreseeable risk of injury to entrants in failing to place non-slip matting presumably in a position where it may have prevented entrants tracking water onto the travelator. 6 The primary judge (at [23]) held that the evidence disclosed that the respondent's systems were reasonable to prevent injury of the sort the applicant suffered. He accepted (at [11] – [12]) that the travelator had been treated with a non-slip finish nine months before the accident and that there was some moisture and dirt on it brought in by other entrants. 7 His Honour also held (at [27]) that the evidence did not establish what useful function such non-slip matting could have served in terms of preventing water accumulating on the travelator and (at [34] – [35]) that the applicant had not proved the pre-conditions necessary to put such matting in place had occurred. 8 In the event he was in error on liability, the primary judge assessed the damages he would have awarded the applicant. He concluded (at [51]) that the applicant would not have met the Civil Liability Act 2002 (NSW) threshold for the recovery of non-economic loss and would have awarded him only $6,230, being $2,600 for past economic loss and $3,630 for out-of-pocket expenses. 9 The applicant complains of the matter to which I have already referred concerning the barricade and also that the primary judge erred in his assessment of the amount of rain which fell prior to the accident. He also asserts that the primary judge ought to have inferred as a matter of common sense that mats would have made the travelator safer. He would seek to challenge, too, in the event leave was granted, the primary judge's "hypothetical" assessment of damages. 10 In my view, the primary judge's reasoning was open to him. The applicant has not demonstrated that his Honour fell into appellable error such as would warrant there being reasonable prospects of success on appeal. 11 I would grant the extension of time to which I have referred but refuse leave to appeal with costs. 12 BASTEN JA: I agree. 13 McCOLL JA: The order of the court therefore will be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.