Whitton v Dexus Funds Management Limited [2019] NSWDC 579

Whitton v Dexus Funds Management Limited [2019] NSWDC 579

The defendant did not breach its duty of care because the risk of injury from a mobility scooter collision at the blind corner was, though foreseeable, not shown to be 'not insignificant' and, in any event, reasonable precautions did not require the measures suggested by the plaintiff, given the rarity of such incidents, the obviousness of the blind corner risk, and the burden and utility of precautions. The risk was an obvious one, relieving the defendant of a duty to warn, and even if precautions were warranted, factual causation was not proven since any such measures were unlikely to have averted the accident. No contributory negligence was found on the plaintiff’s part.

Jurisdiction
Australia
Judgment Date
18 October 2019
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the defendant. Claim dismissed.
Legal Topics
['occupier’s Liability' 'obvious Risk' 'duty of Care' 'breach of Duty' 'causation' 'domestic Assistance' 'economic Loss' 'mobility Scooters in Shopping Centres']
['torts' 'negligence'] ['occupier’s Liability' 'obvious Risk' 'duty of Care' 'breach of Duty' 'causation' 'domestic Assistance' 'economic Loss' 'mobility Scooters in Shopping Centres']

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ['Whether the defendant, as shopping centre operator, breached a duty of care owed to the plaintiff by failing to implement measures to manage the risk of collision between patrons and mobility scooters (including consideration of warning signs, convex mirrors, barriers, and risk assessment)' "Whether the risk of being struck by a mobility scooter was an 'obvious risk' relieving the defendant of a proactive duty to warn" "Whether breach (if any) was causative of the plaintiff's injuries" 'Whether the plaintiff was contributorily negligent']

Ratio Decidendi

The defendant did not breach its duty of care because the risk of injury from a mobility scooter collision at the blind corner was, though foreseeable, not shown to be 'not insignificant' and, in any event, reasonable precautions did not require the measures suggested by the plaintiff, given the rarity of such incidents, the obviousness of the blind corner risk, and the burden and utility of precautions. The risk was an obvious one, relieving the defendant of a duty to warn, and even if precautions were warranted, factual causation was not proven since any such measures were unlikely to have averted the accident. No contributory negligence was found on the plaintiff’s part.

Court Disposition

Judgment for the defendant. Claim dismissed.

Orders

  • ['Judgment for the defendant.' "The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed." 'Liberty to the parties to apply to seek a different cost order to that in (2).' 'Exhibits to be returned after 28 days.']