Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273 Hearing dates: 16 July 2013 Decision date: 29 August 2013 Before: Basten JA at [1]; Emmett JA at [60]; McDougall J at [142]. Decision: (1) Grant leave to appeal against the judgment given in the District Court on 5 April 2012. (2) Deem the notice of appeal filed on 5 July 2012 to have been properly filed and served in accordance with the rules. (3) Allow the appeal and set aside the judgment for the defendant given in the District Court, except the order as to costs. (4) In place thereof, give judgment for the plaintiff against the defendant in an amount of $886.50, such judgment to take effect on 5 April 2012. (5) Order that the appellant pay the respondent's costs in this Court. [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 - negligence - occupier's liability - appellant fell in respondent's supermarket - where appellant slipped on wet floor left unattended for several minutes while wet floor warning signs were in place - whether respondent breached its duty of care to appellant in circumstances by failing to take reasonable precaution against risk - causation - where primary judge took into account own observations of appellant in witness box - assessment of damages where medical expert witnesses not cross-examined despite conflicting opinions - contributory negligence