Loose Fit Pty Limited v Marshbaum & Ors [2011] NSWCA 372

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Loose Fit Pty Limited v Marshbaum & Ors [2011] NSWCA 372 Hearing dates: 13 October 2011 Decision date: 30 November 2011 Before: Campbell JA at 1 Handley AJA at 2 Sackville AJA at 3 Decision: 1) Dismiss the appeal by the Appellant ("Loose Fit") against the First Respondent ("Plaintiff"), with costs. 2) Allow Loose Fit's appeal against the Second and Third Respondents ("Owners"). 3) Set aside the primary Judge's orders dismissing the cross-claim against the Owners with costs. 4) In lieu thereof, judgment for Loose Fit against the Owners for $221,720.78. 5) The Owners pay Loose Fit's costs of the cross-claim in the Court below. 6) The Owners pay Loose Fit's costs of the appeal insofar as those costs relate to the appeal against the Owners. 7) The Owners have a certificate under the Suitors Fund Act 1951 concerning the costs referred to in order 6. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - injury to patron of fitness centre when she fell down staircase - no handrail - whether operator of fitness centre, as occupier of the staircase, breached its duty of care to the patron by failing to install a handrail - whether lessors of premises liable to contribute to the damages award - significance of lessors having created the risk by undertaking renovations in contravention of safety standards Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Civil Liability Act 2002 Local Government Act 1919 Cases Cited: Ahluwalia v Robinson [2003] NSWCA 175 Andrews v Nominal Defendant [1963] SR (NSW) 10 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Cavalier v Pope [1906] AC 428 Jones v Bartlett [2000] HCA 56; 205 CLR 166 Laresu v Clark [2010] NSWCA 180 Maclenan v Segar [1917] 2 KB 325 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 334 Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 Warren v Coombes [1979] HCA 9; 142 CLR 531 Wilkinson v Law Courts Ltd [2011] NSWCA 196 Category: Principal judgment Parties: Loose Fit Pty Limited - Appellant Ellen Marshbaum - First Respondent John Francis Kocx - Second Respondent Marea Anne Hickie - Third Respondent Representation: Counsel - R Cavanagh SC with W Austrom - Appellant B Walker SC with J Anderson - First Respondent G Little with RJM Foord - Third Respondent Solicitors - Walker Hedges & Co - Appellant Terrance Stern - First Respondent Second Respondent in person Marea A Hickie Lawyer - Third Respondent File Number(s): 2008/289559 Publication restriction: No Decision under appeal Citation: Marshbaum v Loose Fit Pty Ltd and Anor [2010] NSWSC 1130 Date of Decision: 2010-10-11 00:00:00 Before: Hoeben J File Number(s): 2008/289559