Monica Bartusz v The Trustee for the North Hill Hamburger Trust (ABN 79725876221) [2016] NSWDC 320

District Court New South Wales

Medium Neutral Citation: Monica Bartusz v The Trustee for the North Hill Hamburger Trust (ABN 79725876221) [2016] NSWDC 320 Hearing dates: 7 – 9 November 2016 Decision date: 25 November 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For Orders see [115] Catchwords: Tort; trip and fall on defendant's premises Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Browne v Dunn (1893) 6R 67 McConachie t/as Willancorah Pastoral Company v Pack [2004] NSWCA 148 Penrith City Council v Parks [2004] NSWCA 201 Reece v Reece (1994) 19 MVR 103 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Varga v Galea [2011] NSWCA 76 Category: Principal judgment Parties: Monica Bartusz (Plaintiff) The Trustee for the North Hill Hamburger Trust (Defendant) Representation: Counsel: R Sheldon SC with L Goodchild (Plaintiff) W Reynolds (Defendant)

Solicitors: Bandeli Hagipantelis Sparke Helmore File Number(s): 15/94085 Publication restriction: Nil

Judgment

Introduction 1. The plaintiff claims damages for injuries suffered by her on 11 April 2013, when she tripped on a kerb of the car park at premises occupied by the defendant at Prestons in the State of New South Wales, upon which it operated a McDonald's restaurant. 2. The plaintiff was a passenger in the rear seat of a car that drove into the car park area of the premises at approximately 8.00 pm on that evening. She contends that the car park lights and external lights on the restaurant premises were not illuminated, although the interior lights within the restaurant were on. Whilst walking from the car to the entrance of the restaurant, the plaintiff claims that the area was in darkness and that she tripped on the kerb and fell to the ground, thereby suffering a fracture of the radius and ulna bones in her right wrist. 3. It is not in dispute that the defendant owed the plaintiff a duty of care, and that the plaintiff was under a duty to take reasonable care for her own safety. What is in dispute is whether the external lights, including the car park, an outdoor eating area ("the verandah") and external signage lights, were on at the time the plaintiff fell. Experts qualified on behalf of both parties agree that if all the lights were on, the kerb would have been plainly visible. They further agree that if the internal lights were on, and the external lights were off, the levels of illuminance on the kerb were lower than the minimum recommended levels. However, with the car park lights and main sign light off, and all other lights on (i.e. the verandah lights), the experts agreed that the level of illuminance would have been adequate for the plaintiff to observe the kerb. 4. The central factual issue to be determined in this matter therefore is whether the external lights, including the car park, signage and verandah lights, were illuminated at or about 8.00 pm on 11 April 2013. 5. The plaintiff's claim is brought in negligence. The particulars of negligence relied upon are: 1. "Failing to take any or any adequate precautions for the Plaintiff's safety; 2. Putting the Plaintiff in a position of peril in the circumstances; 3. Failing to turn on the external restaurant lights and the car park lights; 4. Failing to ensure that any timing device which operated those lights was set to non daylight saving time; 5. Operating the external and car park lights on daylight saving time rather than non daylight saving time. 6. Failing to warn or adequately warn the Plaintiff of the presence of the said kerb; 7. Failing to ensure that the said kerb was illuminated; 8. Failing to pain or otherwise identify the edge of the kerb so that pedestrians approaching that kerb in darkness would be able to see it." 1. By an Amended Defence, the defendant denies that it was negligent and states that all lights, including the car park and external shop lights were on at the time of the accident. Further, the defendant has pleaded that the plaintiff was guilty of contributory negligence pursuant to ss 5R and 5S of the Civil Liability Act 2002 (NSW) ("CLA"). The particulars of contributory negligence pleaded are as follows: 1. "Failing to watch where she was placing her feet as she was walking; 2. Failing to keep a proper look out; 3. Not taking care of her own safety in all the circumstances."