Vourvahakis v Marrickville Metro Shopping Centre Pty Limited [2013] NSWDC 73

District Court New South Wales

Medium Neutral Citation: Vourvahakis v Marrickville Metro Shopping Centre Pty Limited [2013] NSWDC 73 Hearing dates: 20-22, 26-28 February 2013 Decision date: 01 March 2013 Before: Neilson DCJ Decision: I give verdict and judgment for the first defendant against the plaintiff I give verdict and judgment for the second defendant against the plaintiff I order that the first cross-claim be dismissed I order that the second cross-claim be dismissed Catchwords: PERSONAL INJURY - Occupier's liability - First defendant owner and occupier of a shopping centre - Plaintiff slipped and fell whilst walking across a car park toward the entrance of the shopping centre - Second defendant alleged to be contracted by first defendant to provide inter alia occupational health and safety risk assessment - Whether second defendant owed a particular duty of care to the plaintiff - Plaintiff saw extending across the roadway in front of her an expansion joint cover which protruded from the road surface - Plaintiff stepped on expansion cover and fell - Plaintiff was wearing rubber thongs - Plaintiff admitted it was raining at the time - Plaintiff did not turn mind to whether expansion joint cover would be slippery - Plaintiff admitted that if she had turned her mind to the question of slipperiness she would not have stepped on it - Whether any legal impediment to the use of these expansion joint covers at the time that they were installed - Whether other persons had reported injury concerning slipping on expansion joint cover - Whether risk was foreseeable - Risk not insignificant - Whether risk of harm was remote - Question of seriousness of harm - Plaintiff affected by two previous motor vehicle accidents and a number of work-related injuries - Whether risk was obvious - Question of reasonable preventative measures Legislation Cited: Civil Liability Act 2002 Cases Cited: Australia in Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bader v Jelic [2011] NSWCA 255 Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Hackshaw v Shaw (1984) 155 CLR 614 Indermaur v Dames (1866) LR 1 CP 274 Najdovski v Crnojlovic [2008] NSWCA 175 Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 Shaw v Thomas [2010] NSWCA 169 Skulander v Willoughby City Council [2007] NSWCA 116 Category: Principal judgment Parties: Stella Vourvahakis (Plaintiff) Marrickville Metro Shopping Centre Pty Limited (Defendant) Representation: Mr G Beauchamp (Plaintiff) Mr G Guest (Defendant) Brydens Compensation Lawyers (Plaintiff) McCabes Lawyers Pty Ltd (Defendant) File Number(s): 2010/426729