Youkhana v Di Veroli [2010] NSWCA 322

Youkhana v Di Veroli [2010] NSWCA 322

The appeal failed because the appellant did not establish error in the primary judge's conclusion that there was no foreseeable risk of slipping on the stairs that was not insignificant and against which a reasonable occupier would have taken precautions. There was no evidentiary basis for Jones v Dunkel inferences about prior falls or complaints; Dr Cooke's coefficient of friction evidence was open to be treated as relevant and probative; the appellant's and Ms Phillips' evidence of slipperiness was not so significant as to require separate treatment against the expert evidence; and s 5C(c) was correctly applied to subsequent modifications.

Jurisdiction
Australia
Judgment Date
19 November 2010
Procedural Posture
Appeal in Personal Injury Negligence Proceedings / Appeal From Supreme Court of New South Wales, Common Law Division Verdict for the Respondents
Outcome
Appeal dismissed with costs.
Legal Topics
['slip and Fall on Stairs' 'breach of Duty of Care' 'foreseeable Risk of Harm' 'civil Liability Act 2002 Ss 5 B and 5 C' 'jones V Dunkel Inference' 'expert Evidence' 'subsequent Remedial Measures']
['tort' 'negligence' "occupiers' Liability" 'personal Injury' 'evidence'] ['slip and Fall on Stairs' 'breach of Duty of Care' 'foreseeable Risk of Harm' 'civil Liability Act 2002 Ss 5 B and 5 C' 'jones V Dunkel Inference' 'expert Evidence' 'subsequent Remedial Measures']

Case Brief

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Procedural Posture

Appeal in Personal Injury Negligence Proceedings / Appeal From Supreme Court of New South Wales, Common Law Division Verdict for the Respondents

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the respondents were not negligent in relation to stairs on which the appellant slipped and fell.' 'Whether adverse inferences should have been drawn against the respondents under Jones v Dunkel concerning prior falls, complaints, usage or alterations to the stairs.' "Whether the primary judge erred in relying on Dr Cooke's coefficient of friction evidence taken more than three years after the accident." "Whether the primary judge failed to give sufficient weight to the appellant's evidence and Ms Phillips' evidence that the stairs were slippery." 'Whether s 5C(c) of the Civil Liability Act 2002 prevented reliance on subsequent modifications to the stairs as affecting liability.' 'Whether the primary judge should have considered the stairway features cumulatively rather than individually.']

Ratio Decidendi

The appeal failed because the appellant did not establish error in the primary judge's conclusion that there was no foreseeable risk of slipping on the stairs that was not insignificant and against which a reasonable occupier would have taken precautions. There was no evidentiary basis for Jones v Dunkel inferences about prior falls or complaints; Dr Cooke's coefficient of friction evidence was open to be treated as relevant and probative; the appellant's and Ms Phillips' evidence of slipperiness was not so significant as to require separate treatment against the expert evidence; and s 5C(c) was correctly applied to subsequent modifications.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']