FRANKLINS SELFSERVE PTY LTD v BOZINOVSKA [1998] NSWCA 86

FRANKLINS SELFSERVE PTY LTD v BOZINOVSKA [1998] NSWCA 86

The appellant was not in breach of its duty of care as the risk was obvious, and a reasonable occupier could rely on customers to exercise care for their own safety. Even if a warning was necessary, there was insufficient evidence that the respondent would have heeded it, failing the element of causation. The trial judge erred in apportioning 80% liability to the appellant; liability should have been apportioned equally between the parties due to the substantial contribution of the respondent's own conduct to her injury.

Parties
Appellant: Franklins Selfserve Pty Ltd; Respondent: Bozinovska
Jurisdiction
Australia
Judgment Date
14 October 1998
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
appeal allowed
Legal Topics
Occupier's Liability, Duty of Care, Negligence, Causation, Apportionment of Liability, Failure to Warn
Tort Law Occupier's Liability Duty of Care Negligence Causation Apportionment of Liability Failure to Warn

Case Brief

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Parties

Franklins Selfserve Pty Ltd

Appellant

Bozinovska

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the appellant breached its duty of care to the respondent as an occupier by failing to warn against an obvious risk and/or by the shelving system used;
  2. 2 Whether causation was established in respect of the alleged failure to warn;
  3. 3 Whether the trial judge correctly apportioned liability between the parties.

Ratio Decidendi

The appellant was not in breach of its duty of care as the risk was obvious, and a reasonable occupier could rely on customers to exercise care for their own safety. Even if a warning was necessary, there was insufficient evidence that the respondent would have heeded it, failing the element of causation. The trial judge erred in apportioning 80% liability to the appellant; liability should have been apportioned equally between the parties due to the substantial contribution of the respondent's own conduct to her injury.

Court Disposition

appeal allowed

Orders

  • Appeal allowed with costs.
  • Damages awarded below set aside.