Café outdoor seats blocking footpath in Breakfast Point a serious trip and fall hazard

PUBLISHED 23 May 2018

Ms JA is an elderly resident of Breakfast point. The most direct route for her to the bus stop is through the main commercial area of the housing community. On this particular day, the path that JA normally takes was blocked by tables and chairs which were pushed to the edge of the curb so as to maximise the seating. There were so many seats and tables that there was no pathways at all.

As a consequence JA had to negotiate through the outdoor seating and tables. Unfortunately she tripped on a chair leg causing her to fall and fracture her left elbow.

She came to Gerard Malouf and Partners to pursue her claim. In accordance with her instructions pleadings were duly drawn. The statement of claim, statement of particulars and court timetable was served at the place of business, and they were accepted by the manager.

At each appearance before the Court, there was no attendance by the Defendant. Ultimately, default judgement was sought. It was only then that the Court received an email asserting that the name on the pleadings was not them, and they would not be responding to the claim.

Further investigations were then undertaken. It was evidently clear to us that the owners of the business had structured themselves in such a way as to hide their identity.

Firstly, they failed to update their ASIC records within 21 days of a change, causing us to serve pleadings on the previous owners of the business. We then had to make enquiries of their solicitors to identify the owner’s solicitors, to then identify the proper name of the business and again amend. 

The service of the Statement of Claim was also in itself challenging. The addresses provided to ASIC were all outdated, and places of residence not business. The place of business refused to accept service.

It was only through the skill and tenacity of Gerard Malouf and Partners were we able to obtain a certificate of currency for the time of the accident that we sought leave to substitute the insurer as the Defendant. By this time, the Defendant had already incurred significant costs over two years with their “cat and mouse” game, thrown away.

Once the insurer was duly placed on Notice the matter resolved relatively quickly for a good amount for an independent olderly lady.

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