A Slip & Fall Accident in a Penrith Restaurant is Resolved Despite the Restaurant Falling into Liquidation

PUBLISHED 02 Jul 2018

Ms CN attended a restaurant where she made a booking during lunch to celebrate her husband’s 50th birthday.  It was an extremely hot day and she had attended early to confirm seating arrangements.  The restaurant did not have its air conditioner on so she proceeded to the bar area to obtain a glass of water.  As she was proceeding back to the dining area, she needed to proceed down a set of 3 steps.  The steps had been painted blue and they were of an irregular spacing and height.  There were also no handrails, but there was a cutaway area which a person could hold onto if required to descend down the stairs, but for the operators of the restaurant placing their menus onto this area.

As CN proceeded towards the steps, she mis-stepped, causing her to stumble slightly.  As she tried to recover with her left foot, it stepped into some liquid which caused her to slip and continue to fall down the 3 steps.  She landed on her right shoulder heavily.  She was in immediate excruciating pain.  Friends from her party immediately came to her assistance.  Assistance then came from staff of the restaurant.  There was immediate swelling of the area and an ambulance was called.  CN was then taken to hospital where x-rays confirmed that she had suffered a fracture to her shoulder.

As a consequence of the fall, CN was unable to perform any activities of daily living which included personal hygiene, such as brushing her teeth, putting on her bra and showering independently.  Surgery was required to rectify the injury that she suffered.

Ms CN approached the restaurant to inform them of the seriousness of her injuries.  She was not only ignored but accused of being the maker of her own demise.  Their allegation was that the liquid that she slipped on was from the glass of water that she was holding.  This was vehemently denied.  Ms CN then approached Gerard Malouf & Partners for assistance.  It was only a matter of weeks after instructions were received that the restaurant closed after receiving a letter of demand.  There were no further contact details available.  There was no signage upon the doors to indicate what had happened to the restaurant.

It was later identified that the business was already in liquidation and that the closure finally came to a head.

The difficulty that this caused Ms CN is that access to the premises was not available.  Fortunately, photographs were taken of the steps following the accident by CN’s husband.  Photographs were also able to be taken of the steps from the outside by an expert.  An expert’s report was able to be drawn from the statement of CN, her husband and from the photographic evidence.

The business was ultimately leased to another operator and renovations rendered any further examination of the steps impossible.

Despite the difficulties in relation to proving liability, GMP stood firm in their commitment to CN to see the case through to fruition.  There was no doubt that this injury incurred medical treatment expenses and such expenses would need to be projected into the future.  There was no doubt that the injury was of such a nature that she was dependent upon other people and would continue to depend on other people into the future in relation to her domestic assistance and care.  The matter was ultimately set for Hearing.

The insurer had remained adamant in their position that CN would have difficulty in proving liability and no offers were conveyed until 1 week before the matter was to commence in Court.

An Informal Settlement Conference was organised where the initial offer from the insurer indicated their position was that Ms CN was unlikely to succeed in her public liability claim.

Nevertheless, Gerard Malouf & Partners were adamant that there was sufficient evidence to show that the steps were not properly maintained and that the area that could have assisted CN in maintaining her balance, was covered by menus.  There did remain the possibility that CN, holding a glass of water, could have been the cause of the liquid on the steps, however she remained adamant that she had already drank two thirds of the water by the time she had reached the steps.  The matter ultimately resolved for $167,500.00.  When one considers that the risk in proving liability can be considered to be approximately 50%, this was an excellent result to which CN was exceptionally grateful.

Despite the difficulties within the claim, Gerard Malouf & Partners remained committed to our client and continued to be prepared to have the matter proceed to Court.  It was only this commitment that we were able to obtain a significant result for Ms CN.

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