Pavlis v Wetherill Park Market Town [2013] NSWDC 331

District Court New South Wales

Medium Neutral Citation: Pavlis v Wetherill Park Market Town [2013] NSWDC 331 Hearing dates: 21, 22, 23 May 2013 Decision date: 27 May 2013 Before: OLSSON SC DCJ Decision: Verdict for defendants Catchwords: s 5B Civil Liability Act - foreseeability of risk of harm - reasonable response to appreciation of risk - evaluation of medical evidence Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 Category: Principal judgment Parties: FOTINI PAVLISS (Plaintiff) WETHERILL PARK MARKET TOWN (First Defendant) PRETTI REAL ESTATE (Third Defendant) Representation: Mr J Rowe (Plaintiff) Mr J Gracie (First Defendant) Mr J Sheller (Third Defendant) Gajic Lawyers (Plaintiff) McCabes Lawyers (First Defendant) Argus Lawyers (Third Defendant) File Number(s): 2011/64894 Publication restriction: No

Judgment 1The plaintiff, Mrs Fotini (Fay) Pavlis, moves on the Further Amended Statement of Claim filed on 30 September 2011. 2The claim arises from a fall suffered by Mrs Pavlis on 4 October 2009 as she was approaching an automatic teller machine (ATM) owned by the former second defendant when situated at premises owned by the first defendant, Wetherill Park Market Town. 3Those premises ("the shopping centre") were managed at all material times by the third defendant, Pretti Real Estate. 4Both liability and quantum are in issue. 5The case has a slightly unusual background which it is necessary to record. The matter was listed for hearing in October 2012. It commenced before another judge of this Court. On the second day of the trial, the plaintiff collapsed in the witness box during cross-examination and was taken by ambulance to hospital. The matter was necessarily adjourned but subsequently, the judge disqualified herself from further hearing the matter. It was relisted in May this year and came before me. The parties requested that the matter proceed as part heard and, accordingly, I read the transcript of the plaintiff's evidence and the exhibits that had been tendered. Thereafter, the trial continued in the usual way. 6Mrs Pavlis gave some further evidence in-chief relating to the pain that she says has developed in her left hand, and she was cross-examined.