Jane Luu v Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza and another [2006] NSWDC 116

Jane Luu v Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza and another [2006] NSWDC 116

The owner, Bernard Chan Nominees Pty Ltd, retained control and responsibility for the maintenance and repair of the carpark, including the area where the plaintiff fell. The gap constituted a foreseeable hazard that had existed for a considerable time and could have been remedied easily. The Council was not proven to be liable as occupier or for any act or omission leading to the hazard. The plaintiff was not contributorily negligent as it was reasonable for her attention to be diverted under the circumstances. The owner is liable in damages to the plaintiff.

Jurisdiction
Australia
Judgment Date
24 February 2006
Procedural Posture
Civil / Final Judgment
Outcome
Verdict and judgment for the plaintiff against the first defendant for $37,507.65; verdict and judgment for the second defendant against the plaintiff; verdict and judgment for the cross-defendant against the cross-claimant; costs as set out in orders.
Legal Topics
['liability of Occupiers' 'trip and Fall' 'contributory Negligence' 'damages Assessment' 'indemnity as Between Landlord and Tenant']
['tort Law' "occupier's Liability" 'negligence'] ['liability of Occupiers' 'trip and Fall' 'contributory Negligence' 'damages Assessment' 'indemnity as Between Landlord and Tenant']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Who was the occupier of the carpark where the plaintiff fell and is liable for her injuries?' "Was there negligence on the part of the owner and/or Council regarding the defect that caused the plaintiff's injury?" 'Did the plaintiff contribute to her injury by failing to keep a lookout?' 'Is the owner entitled to indemnity or contribution from the Council under the lease or statute?']

Ratio Decidendi

The owner, Bernard Chan Nominees Pty Ltd, retained control and responsibility for the maintenance and repair of the carpark, including the area where the plaintiff fell. The gap constituted a foreseeable hazard that had existed for a considerable time and could have been remedied easily. The Council was not proven to be liable as occupier or for any act or omission leading to the hazard. The plaintiff was not contributorily negligent as it was reasonable for her attention to be diverted under the circumstances. The owner is liable in damages to the plaintiff.

Court Disposition

Verdict and judgment for the plaintiff against the first defendant for $37,507.65; verdict and judgment for the second defendant against the plaintiff; verdict and judgment for the cross-defendant against the cross-claimant; costs as set out in orders.

Orders

  • ["Order the first defendant to pay the plaintiff's costs, including costs payable by the plaintiff to the second defendant." "Order plaintiff to pay the second defendant's costs." "Order cross-claimant to pay the cross-defendant's costs."]