This is an interesting occupier’s liability case where the Plaintiff sued the Defendant for negligence arising from injuries suffered from slipping and falling on a wet travellator.
On 2 May 2015 the Plaintiff, Mrs Trudi Jeffrey was travelling down a travellator at the Kempsey Central Shopping Centre when she slipped and fell, injuring her ankle.
At the time of the incident it had been raining and a section of the travellator was unprotected from the weather, causing rain to fall onto the travellator.
Interestingly, a witness had noticed the Plaintiff had fallen and walked down the travellator to assist her when she too slipped and fell.
The Plaintiff suffered a fracture to her ankle which required an open reduction and internal fixation via surgery. It was a serious injury. As a result of the injury the Plaintiff suffered loss of income as she could not return to her pre-injury hours. She also suffered from pain and restriction in the ankle and required ongoing treatment and domestic assistance.
The Plaintiff commenced proceedings against the Defendant who denied that they had breached their duty of care.
The Plaintiff instructed an expert to review and consider the travellator. He provided an opinion that there were reasonable precautions that the defendant could have taken to prevent the injury from occurring, including:
The Plaintiff was also able to demonstrate through records produced under subpoena that the Defendant had knowledge of the risk of injury due to a person slipping and falling on the travellator as a result of rainfall on 27 August 2014, less than a year before the Plaintiff’s incident.
The Plaintiff’s expert evidence was not challenged, i.e. the Defendant did not serve any expert liability evidence.
The Defendant made its best attempts to have any damages award reduced on the basis of contributory negligence. They argued that that Plaintiff should have noticed that the travellator was wet and should have been holding on to the hand rail. They sought a reduction of any damages award by 20%.
In response, the Plaintiff submitted that she was holding items in both hands and there was no evidence that holding on to the handrail would have made any difference and/or prevented the fall/injuries.
Jude D Russell found that there was no finding of contributory negligence against the Plaintiff for failing to hold on to the hand rail. He submitted that there was no requirement by the Defendant for passengers on the travellator to hold on to the handrail.
Judge Russell explained his reasoning through a review and explanation of the relevant sections of the Civil Liability Act 2002 (NSW) and case law regarding occupier’s liability.
Judge Russell ultimately found for the Plaintiff. He found that the Defendant had breached its duty of care by failing to take reasonable precautions against the risk of a customer slipping and falling on the travellator in wet weather.
Accordingly Judge Russell awarded damages to the Plaintiff in the sum of $264,279.77 plus costs made up as follows:
HEAD OF DAMAGE AMOUNT
Non-economic loss $60,500.00
Past out-of-pocket expenses $443.10
Future out-of-pocket expenses $13,000.00
Past gratuitous attendant care services $28,175.49
Future gratuitous attendant care services $103,371.78
Past economic loss $9,975.00
Future loss of earning capacity $49,257.50
The Defendant must have felt strongly that they had not breached their duty of care to the Plaintiff which resulted in the matter ultimately being heard and decided by Judge Russell.
It is commendable that the Plaintiff and her solicitors prepared the case thoroughly and obtained all relevant expert evidence such as both liability and medical reports. This preparation has proven to result in a successful outcome in this matter.
Feel free to contact Gerard Malouf & Partners for help with similar cases or circumstances by calling 1800 004 878 or complete our email enquiry form.