Gaynor Colleen Smith v Jones Land LaSalle Pty Ltd [2013] NSWDC 155

District Court New South Wales

Medium Neutral Citation: Gaynor Colleen Smith v Jones Land LaSalle Pty Ltd [2013] NSWDC 155 Hearing dates: 25, 26, 27, 28 February; 1, 4 March 2013 Decision date: 28 March 2013 Before: Judge MJ Finnane QC Decision: See Paragraph [48] Catchwords: PERSONAL INJURY - trip and fall - injury to knee - lower back injury CAUSATION - crack in marble tile - NEGLIGENCE - defendants' inadequate system of identifying risk - EVIDENCE - insufficient to establish cause of injury Category: Principal judgment Parties: Gaynor Colleen Smith (Plaintiff) Jones Lang LaSalle (Defendant) Representation: MJ Maxwell (Plaintiff) D Feller SC (Defendant) RA O'Keefe Brydons Law Group (Plaintiff) Vardenega Roberts (Defendant) File Number(s): 2011/405560

Judgment

Introduction 1Mrs Gaynor Colleen Smith, the plaintiff in these proceedings sues the defendant as the occupier of the Southgate Shopping Centre at Sylvania for damages arising from her fall in that shopping centre on 23 October 2009. 2The plaintiff was walking towards the St George bank, which was located in the centre when she tripped and fell on the floor in front of the bank. 3Her claim was that the defendant was negligent in permitting a cracked tile to be present on the floor in front of the bank. It was her case that she tripped on the crack in the tile when her shoe got caught in it. 4CCTV footage was tendered (See Exhibit P6) and played in court and showed the plaintiff walking across the floor and tripping. One of the controversies in the case was whether she tripped on the crack or tripped somewhere else. 5The defendant sought to prove that she slipped in a place some distance from the cracked tile by calling evidence from Mr William Bailey, a qualified industrial and biomedical engineer, to which the plaintiff replied by calling evidence from Miss Tia Orton, a qualified mechanical engineer. I heard the engineering evidence on the voir dire and excluded all but a small part of it as being irrelevant and inadmissible. 6The evidence satisfies me that the plaintiff, tripped on tiles in front of the St George bank, but I cannot be certain that the tiles she tripped on had a crack in them. She may have slipped or tripped on a cracked tile, but if she did, it was not the crack in the tile that caused her to trip. 7I am satisfied on the evidence that the crack on the tile was not raised, nor was there any gap that would cause or could cause her foot or shoe to be caught in it. I have no doubt that she believes she caught the toe of her right foot in the crack on the tile but the evidence does not support her belief because the crack was not raised and there was nothing in which she could catch the toe of a shoe. 8The result of the fall was that she suffered soft tissue injuries to her back and her right leg. These injuries did not require any surgical intervention and in my opinion, those injuries have ceased to have any effect on her. If I am wrong and she is entitled to damages, she would be entitled at most to less than 15% of the most extreme case. The result will be that there will be a verdict for the defendant and I will hear submissions on the question of costs.