Irena Alat v Franklins PTY LTD [2012] NSWDC 104

District Court New South Wales

Medium Neutral Citation: Irena Alat v Franklins PTY LTD [2012] NSWDC 104 Hearing dates: 26, 27 July 2011 and 12, 19 August 2011 Decision date: 20 April 2012 Before: Letherbarrow SC DCJ Decision: Verdict and judgment for the plaintiff Catchwords: TORTS - fall on spillage in supermarket - negligence - duty of care - breach of duty - causation of damage - contributory negligence - assessment of damages Legislation Cited: Part 29 Rule 29.10 of the Uniform Civil Procedure Rules (2005), s5B, s5D, s5R, s12, s15 of the Civil Liability Act (2002) Cases Cited: Wyong v Shirt [1980] HCA 12,Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241, Shoey's Pty Ltd v Allan (1991) Aust torts Reports 81-104, Waverly Council v Ferriera [2005] NSWCA 418, Stretenovic v Reed [2009] NSWCA 280, Council of the City of Greater Taree v Wells [2010] NSWCA 147, Woolworths Ltd v Strong [2010] NSWCA 282, Strong v Woolworths [2012] HCA 5 Category: Principal judgment Parties: Plaintiff: IRENA ALAT Defendant: FRANKLINS PTY LTD Representation: Plaintiff: Mr. J Rowe Defendant: Mr Maconachie QC Mr D. Lloyd Plaintiff: Turner Freeman Defendant: Colin Briggers & Paisley File Number(s): 2010/313422

Judgment 1In this matter the plaintiff seeks damages for personal injuries which she sustained on Friday, 11 April 2008, as a result of slipping on some thickened cream which had been spilt on the floor of the defendant's supermarket premises located at Liverpool Plaza, Liverpool. 2The case for the plaintiff was presented over two days, being 26 and 27 July last, at the conclusion of which Mr Maconachie QC, senior counsel for the defendant, moved the court for judgment in favour of his client pursuant to Part 29 Rule 29.10 of the Uniform Civil Procedure Rules, 2005, "on the ground that, on the evidence given, a judgment for the (plaintiff) could not be supported". 3Considerable argument thereafter ensued with reference to s 5B and 5D of the Civil Liability Act 2002 (the "CLA"). I was referred to numerous authorities and provided with detailed written submissions by Mr Maconachie QC raising, inter alia, the correct interpretation of s 5D in light of the Court of Appeal's decision in Woolworths Ltd v Strong [2010] NSWCA 282 from which Mr Maconachie QC informed me the High Court had granted special leave to appeal. It was not suggested by either party that my decision on the Part 29 Rule 29.10 application should await the High Court's decision. In fact, Mr. Maconachie QC submitted that whatever such decision was, it could not affect such application. 4Mr Rowe, counsel for the plaintiff, also referred me to numerous authorities concerning slip and fall accidents in supermarkets going back over approximately the last twenty years. 5As there was only one further hearing day available before I had to recommence a part heard matter, with both counsels' consent, I reserved my decision on the part 29 Rule 29.10 application, indicating that when I handed it down, if such application was unsuccessful, the matter could then proceed on a date suitable to the parties. 6I handed down my reserved decision in relation to such application on 12 August last and refused it (see separate judgement). I then stood the matter over part heard until 19 August last. On that date, I refused an application by the plaintiff to reopen her case to call on a notice to produce directed to the defendant which had been prepared in consequence of certain deficiencies in the plaintiff's case to which I had adverted when dismissing the defendant's earlier application. I also dismissed an application brought by the defendant seeking leave to call evidence on the issue of quantum despite its earlier failed application pursuant to Part 29 Rule 29.10. I thereupon heard addresses and reserved my decision, agreeing to a joint request by Mr Rowe and Mr Lloyd, Mr Macconachie's junior, to await the High Court's decision in Strong v Woolworths. 7The High Court handed down its decision (Strong v Woolworths Ltd [2012] HCA 5) on 7 March last. I then gave the parties an opportunity of making further submissions in writing as to the effect of that decision on the present matter.