Khaled v NSW Land & Housing Corporation [2019] NSWDC 97

District Court New South Wales

Medium Neutral Citation: Khaled v NSW Land & Housing Corporation [2019] NSWDC 97 Hearing dates: 13-15 March 2019 Date of orders: 05 April 2019 Decision date: 05 April 2019 Jurisdiction: Civil Before: Smith SC DCJ Decision: (1) Verdict and judgment for the defendants. (2) Plaintiff to pay the defendants' costs. (3) Exhibits are to be returned. Catchwords: TORTS – Negligence – Personal Injury – Damages – slip and fall – failure to warn – duty of care – foreseeable risk – reasonable precautions to avoid risk – application of non-slip substance – pre-existing conditions – factual causation. Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Category: Principal judgment Parties: Marwa Khaled – Plaintiff New South Wales Land & Housing Corporation – First Defendant Justine Davy – Second Defendant Representation: Counsel: Mr K Pierce – Plaintiff Mr W Reynolds – First Defendant Mr D P O'Dowd – Second Defendant

Solicitors: Stewart Cuddy & Mockler – Plaintiff Wotton & Kearney – First Defendant Curwoods – Second Defendant File Number(s): 2017/298089 Publication restriction: None

Judgment 1. In 2008 Mrs Khaled moved into the property at 16 Neirbo Avenue, Hurstville with her husband and their eight children. The main access to, and egress from, the house on the property was by way of a sloping walkway and a patio. In the course of their tenancy of the property Mrs Khaled and her family walked over the walkway many thousands of times without incident. 2. On 30 August and 1 September 2014, Mr Tony Davy, the husband of the owner of the property, applied to the walkway a substance that he had previously used on a sloping area to create a non-slip surface. He did not tell Ms Khaled that he had done this. 3. Mrs Khaled says that on 13 October 2014 she heard it starting to rain and she walked out onto the footpath in order to collect some leaves she had left to dry on the front lawn. She says she slipped and fell on the walkway and injured herself. 4. Mrs Khaled seeks an award of damages from the owner of the house, Mrs Justine Davy, and the NSW Land and Housing Corporation (Housing) which had rented the house from Mrs Davy and let it to Mrs Khaled. Her claim is based on the allegation that her injury was caused by the defendants' negligence. Ultimately, the plaintiff alleged that the breach of duty consisted of three matters: 1. not engaging a licensed, competent tradesman to oversee the safety of the walkway; 2. the application by Mr Davy of a substance that was not suitable for the walkway; and 3. the failure to warn Mrs Khaled that the substance had been applied. Although it was denied by the plaintiff, this refinement marked a significant shift in their case and took it outside of her pleaded case. I would dismiss it for that reason; however, for reasons I will give, the plaintiff has failed to establish any negligence or that any injury was caused by any act or omission of the defendants. 1. The issues in these proceedings are to be determined within the framework of the Civil Liability Act 2002 (NSW). Before turning to the relevant provisions of that Act, it is necessary briefly to set out the evidence and my findings of fact.