Pavlis v Wetherill Park Market Town Pty Ltd [2014] NSWCA 292

Pavlis v Wetherill Park Market Town Pty Ltd [2014] NSWCA 292

The appeal on liability failed because the trial judge was entitled to find that the whole pathway area had been painted less than six months before the accident with paint containing non-slip additives, that this was a reasonable precaution against the foreseeable risk of slipping, and that the absence of other slips or complaints was relevant to the precautions reasonably required. The plaintiff did not establish error merely by showing that the surface remained prone to being slippery when wet. Market Town obtained leave to appeal on indemnity, but the appeal failed because cl 15 was not to be read as restricting the general law indemnity of an agent or as excluding costs of...

Jurisdiction
Australia
Judgment Date
28 August 2014
Procedural Posture
Appeal and Summonses From District Court Proceedings Concerning Negligence and Contractual Indemnity / Court of Appeal Judgment
Outcome
The summons in matter 2012/396652 was dismissed; Ms Pavlis' appeal in matter 2013/165726 was dismissed; the motion to rely on further evidence was dismissed; Market Town was granted leave to appeal on indemnity in matter 2013/222589 but its appeal was dismissed.
Legal Topics
['breach of Duty' 'reasonable Precautions' 'slip and Fall on Wet Pavement' 'civil Liability Act 2002 (nsw), S 5 B' 'causation' 'principal and Agent Indemnity' 'construction of Indemnity Clause']
['tort' 'negligence' 'contract' 'agency'] ['breach of Duty' 'reasonable Precautions' 'slip and Fall on Wet Pavement' 'civil Liability Act 2002 (nsw), S 5 B' 'causation' 'principal and Agent Indemnity' 'construction of Indemnity Clause']

Case Brief

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Procedural Posture

Appeal and Summonses From District Court Proceedings Concerning Negligence and Contractual Indemnity / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the trial judge erred in not finding that the plaintiff slipped in an area where non-slip paint had not been applied.' 'Whether the trial judge erred in finding that reasonable precautions had been taken despite the pavement remaining prone to being slippery when wet.' 'Whether any causation issue under s 5D of the Civil Liability Act 2002 (NSW) required determination if breach was not established.' "Whether cl 15 of the management agreement required Market Town to indemnify Pretti for costs incurred defending the plaintiff's proceedings." "Whether the indemnity clause extended to claims arising from non-negligent performance of the agent's duties rather than being limited so as to exclude alleged non-performance."]

Ratio Decidendi

The appeal on liability failed because the trial judge was entitled to find that the whole pathway area had been painted less than six months before the accident with paint containing non-slip additives, that this was a reasonable precaution against the foreseeable risk of slipping, and that the absence of other slips or complaints was relevant to the precautions reasonably required. The plaintiff did not establish error merely by showing that the surface remained prone to being slippery when wet. Market Town obtained leave to appeal on indemnity, but the appeal failed because cl 15 was not to be read as restricting the general law indemnity of an agent or as excluding costs of...

Court Disposition

The summons in matter 2012/396652 was dismissed; Ms Pavlis' appeal in matter 2013/165726 was dismissed; the motion to rely on further evidence was dismissed; Market Town was granted leave to appeal on indemnity in matter 2013/222589 but its appeal was dismissed.

Orders

  • ['In matter 2012/396652: Dismiss the summons.' 'In matter 2012/396652: Order that the costs in this matter be costs in the appeal.' 'In matter 2013/165726: Dismiss the appeal.' 'In matter 2013/165726: Dismiss the motion seeking to rely on further evidence.' "In matter 2013/165726: Order that the appellant pay the...