Shanice Titus v MHC Leisure Fund Services Pty Ltd trading as MHC Property Trust No. 1 Op Trust No. 1 & Anor [2017] NSWDC 162

District Court New South Wales

Medium Neutral Citation: Shanice Titus v MHC Leisure Fund Services Pty Ltd trading as MHC Property Trust No. 1 Op Trust No. 1 & Anor [2017] NSWDC 162 Hearing dates: 8, 9 and 13 June 2017 Decision date: 30 June 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For orders see [108] Catchwords: Contributory negligence by pedestrian; assessment of damages Legislation Cited: Civil Liability Act 2002 Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Kallouf v Middis [2008] NSWCA 121 Medlin v State Government Insurance Office (1995) 182 CLR 1 Schultz v McCormack [2015] NSWCA 330 State of New South Wales v Moss (2000) 54 NSWLR 536 Category: Principal judgment Parties: Shanice Titus (Plaintiff) MHC Leisure Fund Services Pty Ltd as MHC Property Trust No. 1 Trust No. 1 (1st Defendant) MHC Leisure Fund Services Pty Ltd as MHC Op Trust No. 1 t/as Marlborough Hotel (2nd Defendant) Representation: Counsel: M Sciglitano (Plaintiff) O J Dinkha (Defendant Solicitors: Brydens Lawyers Pty Limited HBA Legal - Sydney File Number(s): 16/165866 Publication restriction: Nil

Judgment 1. By an Amended Statement of Claim ("ASOC") filed on 8 August 2016, the plaintiff claims damages for personal injuries suffered by her on 25 June 2015 when she was walking on a footpath along Missenden Road Newtown, outside premises known as the Hotel Marlborough. It was approximately 8.30am on a Thursday, and the plaintiff was walking her younger brother to a nearby school. She was 16 years of age at the time, and there were pedestrians walking in front of her, and in the opposite direction along the footpath. The ASOC pleads that she walked into an open manhole used to place or remove kegs of beer required for the hotel's premises (hereinafter referred to as "the keg chute"). 2. The plaintiff fell a distance of approximately 4 metres and suffered injuries to her back, neck, right knee, right hip and jaw. 3. In a Defence filed to the ASOC on 30 November 2016, the first defendant admitted it was the owner of the freehold land upon which the premises were located, and the second defendant admitted it was the owner and occupier of the premises. The defendants denied negligence and further pleaded that the plaintiff's entitlement to damages must be reduced by reason of the plaintiff's contributory negligence and, in the alternative, the defendants pleaded that the plaintiff's injuries were the manifestation of an obvious risk, relying on ss 5F, 5G and 5H of the Civil Liability Act 2002 ("CLA"). 4. The defendants further pleaded that they objected to damages being awarded in excess of the jurisdiction of the court and that the plaintiff's injuries (which were denied), were less than 15% of a most extreme case, pursuant to s 16(1) of the CLA, and therefore the plaintiff was not entitled to damages for non‑economic loss. 5. At the conclusion of the hearing, counsel for the defendants made no submissions in respect of the issue of breach of duty of care, or in respect of the pleading that the plaintiff's injuries were a manifestation of obvious risk so as to attract the application of ss 5F, 5G and 5H of the CLA. Counsel also submitted that the plaintiff's injuries exceeded 15% of a most extreme case. 6. The issues to be determined therefore were: 1. Was the plaintiff guilty of contributory negligence? 2. What damages should be awarded under the following heads of damages: 1. Non-economic loss 2. Future treatment expenses 3. Past wage loss; and 4. Future economic loss. The parties agreed the plaintiff's out of pocket expenses.