McDonald v Australian Tourist Park Management Pty Ltd & Anor [2013] NSWDC 201

District Court New South Wales

Medium Neutral Citation: McDonald v Australian Tourist Park Management Pty Ltd & Anor [2013] NSWDC 201 Hearing dates: 18, 19 & 20 September 2013; close of submissions 14 October 2013 Decision date: 18 October 2013 Before: Levy SC DCJ Decision: 1. Verdict and judgment for the plaintiff against each defendant in the sum of $299,965.70; 2. The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered; 3. On the cross-claim the first defendant is to pay 60 per cent of the plaintiff's damages and the second defendant is to pay 40 per cent of the plaintiff's damages; 4. No order as to costs of the cross-claims; 5. The defendants are to pay the plaintiff's costs in the ratio 60 per cent by the first defendant and 40 per cent by the second defendant; 6. The exhibits may be returned; 7. Liberty to apply on 7 days notice if further orders are required. [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 - plaintiff injured when in darkness she stepped into a pothole on the unlit roadway of caravan park where she was a resident - whether inherent risk of injury - whether obvious risk of injury - whether breach of duty of care by defendants - whether contributory negligence on part of plaintiff - apportionment of liability between defendants; DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5F, s 5G, s 5H, s 5I, s 15, s 16, Pt 1A, Pt 2, Pt 5 Evidence Act 1995, s 60 Limitation Act 1969 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Hackshaw v Hackshaw [1984] HCA 84; (1984) 155 CLR 614 Paul v Cooke [2013] NSWCA 311 Phillis v Daly (1988) NSWLR 65 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Reece v Reece [1994] NSWCA 259 Category: Principal judgment Parties: Gloria McDonald (Plaintiff) Australian Tourist Park Management Pty Ltd (First defendant) The Trustee for the North Coast Accommodation Trust t/as The Moonee Beach Holiday Park (Second defendant) Representation: Mr K Andrews (Plaintiff) Mr W Reynolds (First defendant) Mr J Turnbull (Second defendant) Monaco Solicitors (Plaintiff) Lee & Lyons (First defendant) McCulloch and Buggy (Second defendant) File Number(s): 2012/146578 Publication restriction: None