Margaret Hill v Coles Supermarkets Australia Pty Limited (ACN 004 189 708) [2016] NSWDC 5

District Court New South Wales

Medium Neutral Citation: Margaret Hill v Coles Supermarkets Australia Pty Limited (ACN 004 189 708) [2016] NSWDC 5 Hearing dates: 27-29 January 2016 Decision date: 12 February 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the plaintiff. For orders see [86] Catchwords: Slip and fall; occupier's liability. Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Adeel's Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343. Jopling v Isaac [2006] NSWCA 299 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 Category: Principal judgment Parties: Margaret Hill (Plaintiff) Coles Supermarkets Australia Pty Limited (ACN 004 189 708) (Defendant) Representation: Counsel: P N Khandhar (Plaintiff) B McManus (Defendant)

Solicitors: Brydens Compensation Lawyers McCulloch & Buggy File Number(s): 14/326308 Publication restriction: Nil

Judgment

The plaintiff's claim 1. The plaintiff, who was born on 3 July 1965, claims damages for injuries suffered by her on 11 January 2013 when she slipped and fell within the defendant's premises at Kings Langley. The plaintiff claims that she slipped and fell on water which had spilled on the floor, adjacent to a refrigerated fruit and vegetable display cabinet. 2. The incident occurred at approximately 7.15am, a short time after the premises had opened for business. The plaintiff suffered a serious injury to her left ankle, which has required surgery by way of an arthroscopy and synovectomy. She suffers ongoing impairment to most physical activities. 3. The plaintiff claims that the defendant was negligent. The particulars of negligence pleaded are as follows: 1. "Placing the plaintiff in a position of peril under the circumstances; 2. Failing to warn, or adequately warn the plaintiff of the presence of water near the fruit and vegetable case; 3. Failing to install non-slip matting on the floor adjacent to the said case; 4. Failing to inspect, or adequately inspect, the floor near the said case; 5. Failing to ensure that the area around the said case was free from water by means of dry-mopping after restocking the case with fruit and vegetables." 1. The defendant, by its Defence, has denied the allegation of negligence, and has pleaded that the relevant risk of harm posed by the plaintiff having to traverse the relevant section of floor and negotiate any liquid on the floor (the presence of which was denied), was an obvious risk for the purpose of Pt 1A Div 4 of the Civil Liability Act 2002 (NSW) ("CLA"). The defendant has pleaded: 1. "Pursuant to s 5G of the CLA, the plaintiff is presumed to have been aware of the risk of harm and; 2. The plaintiff voluntarily assumed the risk of harm and; 3. The defendant is not liable for the materialisation of the harm and; 4. Pursuant to s 5H of the CLA, the defendant did not owe a duty of care to the plaintiff to warn of the risk." 1. Further, the defendant has pleaded that the plaintiff's injuries were suffered, wholly or in part, as a result of her own contributory negligence. The particulars of contributory negligence are: 1. "Failing to take any or any reasonable care for her own safety; 2. Failing to keep a proper look out; 3. Failing to avoid an obvious hazard." 1. In respect of its pleading of contributory negligence, the defendant relied on ss 5R and 5S of the CLA. The above pleadings were abandoned at the hearing; however, liability, (i.e. breach of duty of care and causation) remained in issue.