On or around May 2013, our client was an elderly lady attending a large shopping centre in Raymond Terrace, a Town in the Hunter Valley region of NSW.
Our client was attending the shopping centre for the purposes of shopping. She was a legal entrant into the shopping centre using the travelator on the premises. At all time, the owners of the shopping centre had the care, management and control of the shopping centre.
The defendant owners therefore owed our client a duty of care to exercise reasonable care to prevent injury to her and other customers and shoppers on their premises.
At all times the owners of the shopping centre had a comprehensive maintenance agreement with an elevator company who was charged with the responsibility for the inspection, service and maintenance of a travelator at the shopping centre.
As our client was attempting to use the travelator within the centre, the travelator was not functioning properly and began to shake resulting in our client losing her balance and falling heavily. At the time the handrails of the travellator were not moving with the floor of the travellator and were defective.
Both the owner of the shopping centre and the elevator company were aware that the travelator was defective prior to our client’s accident.
As a result of the malfunctioning of the travelator, our client fell and suffered injuries. It was alleged that the risk of injury was foreseeable, the risk of harm was not insignificant and that the owners of the shopping centre and the operators of the travelator failed to take any reasonable care to prevent any risk of harm materialising by failing to ensure that the travelator was safe and fit for its purpose.
As a result of the fall our client suffered injuries to her right shoulder, lower back, a fracture of her coccyx, and fractures of her lower back, injuries to both knees, shock and psychological injury.
Our client was 60 years of age at the time of the accident. Her injuries resulted in her suffering from ongoing continuing disabilities which reduced her capacity to participate in normal social, domestic, recreational, and employment activities.
Our client alleged that she had suffered a significant loss of enjoyment of life, needing to attend to doctors and specialists for treatment, being unable to return to pre injury employment duties and requiring domestic assistance in the future.
Our clients claim comprised of non-economic loss for permanent impairment pain and suffering, past and future treatment expenses, past and future loss of wages, past and future loss of superannuation, past and future care and also legal costs.
We arranged for our client to be medically examined and assessed by a number of doctors and specialists in Newcastle area particularly an orthopaedic surgeon and a psychiatrist to assess the nature and extent of her injuries and continuing disabilities and her future treatment requirements and limitations from various aspects of her life.
We also obtained a copy of the maintenance agreement and the maintenance records in relation to the travelator for them to be independently assessed and reviewed by our liability expert. We arranged for a mechanical engineer to review the travelator and all of the records to provide a liability expert report in the matter.
The mechanical engineer provided a detailed liability expert report which found that at the time of the client’s injury the travelator was defective and not functioning properly in accordance with occupational health and safety management systems.
Furthermore, the expert found that if appropriate risk audit procedures had been carried out by the owners of the shopping centre and also the travelator experts, they would have been able to detect the dangers of unreliability on the subject travellator and to take all reasonable steps to correct the situation as required by the occupational health and safety regulations and to erect safety barriers to protect customers from entering that area such as our client would have prevented the accident occurring.
Both owner and the elevator company defendants did not provide any liability expert report in reply to our experts report.
We launched legal proceedings against the shopping centre and also the travelator company who were charged with the responsibility for the inspection, service and maintenance of the travellator.
Both defendants filed defences in which they denied liability in terms of negligence against them with respect to our client’s injury, loss and damage. They also pleaded particulars of contributory negligence stating that our client failed to take any or any proper care for her own safety. In our respectful opinion, all of these defences and particulars pleaded by the defendants were defeated by a comprehensive and detailed liability expert report from our mechanical engineer which that found that both defendants were negligent and were responsible for our clients injuries, losses and damages.
The matter was listed for Hearing before the District Court of NSW, in Sydney. In accordance with the orders of the court, the parties arranged for an informal settlement conference for the purposes of discussion the liability and medical issues and exploring the prospects of settlement in the matter. This was arranged once our client had attended to be medically examined and assessed by the defendant’s specialist.
At the informal settlement conference between the parties, after reviewing their positions on the medical and liability issues, the parties were able to resolve the claim on the basis that our client received a substantial award of compensation in respect of her injuries, losses and damages. Both defendants had accepted equal liability in negligence in relation to our client’s accident and subsequent injuries.
Our client was very pleased with the outcome of the matter having regard to the fact that they denied total liability in relation to the claim from the outset of the claim. It was only upon providing both defendants with detailed particulars and the liability expert report from the mechanical engineer, coupled with the medical expert evidence, were both defendants prepared to sit down at an informal settlement conference scenario for the purposes of resolving the claim.
If you are a shopper or customer who was attending a shopping centre and you suffer an injury on their premises, including on a travelator as has occurred to our client in these circumstances, you may be entitled to receive substantial award of compensation for damages in respect of your injuries that you have suffered as a result of that accident.
In this case, our client was a customer at the shopping centre in the Raymond Terrace Town when she fell on a malfunctioning and defective travelator and on the shopping centres premises. With the inspection of the service and maintenance records of the travelator, we were able to establish that prior to our clients injury, the travelator was not functioning correctly and defective and both the shopping centre and the travelator company should have ensured that it was not operating at the time and should have taken appropriate measures to ensure that it had complied with all occupational health and safety regulations. By failing to do so, our client suffered her accident and consequential injuries, losses and damages.
With the assistance of the medical expert evidence, we were able to establish the extent of our client’s injuries and continuing disabilities arising from the accident and both defendants were prepared to agree to pay our client a substantial award of compensation in damages in respect of her injuries and permanent impairment arising from the accident.
For a free no obligation consultation, please contact our toll free number on 1800 004 878 so that an appointment can be arranged for you to attend our office to protect any legal rights that you may have arising from any slip and fall at a shopping centre whilst you are attending their premises for the purposes of shopping.