Cockburn v The Trust Company Ltd (No 2) [2014] NSWDC 119

District Court New South Wales

Medium Neutral Citation: Cockburn v The Trust Company Ltd (No 2) [2014] NSWDC 119 Decision date: 02 June 2014 Before: Cogswell SC DCJ Decision: (1) Verdict and judgment for the first defendant against the plaintiff. (2) Verdict and judgment in favour of the plaintiff in the sum of $402,973.25 against the second defendant. Catchwords: TORTS - Negligence - driver-contractor injured when foot went through hole in grate - duty of care - adverse inference insufficient to establish liability of first defendant - second defendant occupier of roadway sufficient to establish duty of care - leasehold arrangements - used area in course of business - action and words of forklift driver working on second defendant's premises - admission made with authority - no contributory negligence on part of plaintiff - unexpected problem - hole in surface otherwise sealed and even - causation - hole there long enough to establish case in negligence - damages - non economic loss - poor prognosis for recovery - extensive impact of plaintiff's life - 30% of a most extreme case - proof of negligence - credibility of evidence - plaintiff a witness of truth - surveillance film consistent with medical evidence, good work history and plaintiff working despite pain. Legislation Cited: Civil Liability Act 2002 (NSW) ss 3, 5R, 13, 16. Evidence Act 1995 (NSW) s 87. Cases Cited: Gorman v Wills [1906] HCA 84; 4 CLR 764. Jones v Dunkel [1959] HCA 8; 101 CLR 298; 32 ALJR 395. Landini v State of NSW [2007] NSWSC 259. Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; Aust Torts Reports 82-043. Category: Principal judgment Parties: Raymond Cockburn (plaintiff) The Trust Company Limited (first defendant) Jeminex Brands and Operations Pty Ltd (formerly Beaver Brands Pty Ltd) (second defendant) Representation: Counsel: AJ Lidden SC, MA Campbell (plaintiff) SE McCarthy (defendants) File Number(s): DC 2012/00176113