Alexandra Annas v Gidaro Constructions Pty Ltd [2012] NSWDC 79

District Court New South Wales

Medium Neutral Citation: Alexandra Annas v Gidaro Constructions Pty Ltd [2012] NSWDC 79 Hearing dates: 10 May 2012, 11 May 2012, 14 May 2012 & 15 May 2012 Decision date: 25 May 2012 Jurisdiction: Civil Before: Judge P Mahony SC Decision: Verdict for the Defendant Catchwords: Slip and fall; photographic evidence Legislation Cited: Civil Liability Act 2002 Evidence Act 1995 Cases Cited: Peacock v R (1911) 13 CLR 619 Luxton v Vines (1952) 85 CLR 352 Naxakis v West General Hospital (1999) 197 CLR 269 Brodie v Singleton Shire Council (2001) 206 CLR 512 at 518 [163] Blacktown City Council v Hocking [2008] NSWCA 144 Daw v ToyWorld (NSW) Pty Ltd ]2001] NSWCA 25 at [70] Brother Justin Guthrie & Anor v Heydan David Spence CA 40105/09 Mason v Demasi [2009] NSWCA 227 at [2] Fallas v Mourlas (2006) 65 NSWLR 418 at [100] Category: Principal judgment Parties: Alexandra Annas - Plaintiff Gidaro Constructions Pty Ltd - Defendant Representation: Mr R Gambi for the Plaintiff Mr J Sharpe for the Defendant Mr G Koutzoumis, Gary Koutzoumis Lawyers - Plaintiff Mr C Rogers, Remington & Co Solicitors - Defendant File Number(s): 11/214417 Publication restriction: No

Judgment

The Plaintiff's Claim

1The plaintiff claims damages for personal injuries suffered by her on 22 January 2010 when she fell outside premises situated at 19 Oswald Street, Rockdale, New South Wales. At approximately 6.30am, the plaintiff was walking along the footpath on Oswald Street towards the premises at number 19, which were at the time, a building site. Across the driveway to that site was a timber footpath protection pad designed to protect the footpath from damage from heavy vehicles gaining access to and egress from the building site. 2The plaintiff's Statement of Claim pleaded that as she attempted to traverse the timber planks, "her foot caught the raised edge of the timber plank causing her to stumble forward, lose her balance, and fall to the ground onto her outstretched hands". 3The particulars of negligence are listed in paragraph 9 of the Statement of Claim. Of those particulars, paragraph 9 (e) was not pressed at trial. The particulars relied on amount to installing, and allowing to remain in situ, timber planks where the ends were not level with the concrete footpath thereby creating a trip hazard, failing to inspect the planks to ensure the ends remain level with the concrete path and failing to warn pedestrians by means of a sign or by painting the ends of the timber planks so as to highlight the trip hazard. 4The plaintiff claims that she suffered an injury to her little finger on the right hand, being a fracture to the base of the proximal phalanx, that she aggravated preexisting degenerative changes in her right hand and thumb, that she sustained an injury to her right wrist and an injury to her neck which included aggravation of pre-existing degenerative changes. In addition, the plaintiff suffered an injury to both knees which had resolved.