Wright v Perpetual Limited & Ors [2011] NSWDC 37

Wright v Perpetual Limited & Ors [2011] NSWDC 37

The defendants, as occupiers of the Kings Langley Shopping Centre car park, breached their duty of care by permitting a low cut vestigial tree stump to remain in a raised garden bed that was foreseeably likely to be used by pedestrians as an access route, where the stump was a not insignificant tripping hazard and reasonable precautions such as removal, grinding down or barriers were available and not unduly burdensome. Although the stump was an obvious risk and the defendants were not obliged to warn of it, the failure to remove or isolate it was negligent and caused the plaintiff's fall and left knee injury. The plaintiff was also contributorily negligent because she knew of the stump...

Jurisdiction
Australia
Judgment Date
15 June 2011
Procedural Posture
Civil Personal Injury Claim in Negligence and Occupier's Liability / Principal Judgment After Trial on Liability, Contributory Negligence and Damages
Outcome
Judgment for the plaintiff after 40 per cent reduction for contributory negligence, with damages assessed at $480,319.85 and judgment entered for $288,191.91.
Legal Topics
["occupier's Liability" 'negligence' 'obvious Risk' 'breach of Duty of Care' 'causation' 'contributory Negligence' 'assessment of Damages' 'gratuitous Domestic Assistance' 'future Treatment']
['torts' 'civil Liability' 'damages'] ["occupier's Liability" 'negligence' 'obvious Risk' 'breach of Duty of Care' 'causation' 'contributory Negligence' 'assessment of Damages' 'gratuitous Domestic Assistance' 'future Treatment']

Case Brief

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Procedural Posture

Civil Personal Injury Claim in Negligence and Occupier's Liability / Principal Judgment After Trial on Liability, Contributory Negligence and Damages

Legal Issues

  1. 1 ['Whether the exposed tree stump was an obvious risk within the meaning of s 5F of the Civil Liability Act 2002.' 'Whether the defendants breached the duty of care owed to the plaintiff as occupiers of the car park premises.' "Whether the defendants' negligence caused the plaintiff's injuries." 'Whether the plaintiff was contributorily negligent and, if so, to what extent.' 'What damages should be assessed under the claimed heads of damage.']

Ratio Decidendi

The defendants, as occupiers of the Kings Langley Shopping Centre car park, breached their duty of care by permitting a low cut vestigial tree stump to remain in a raised garden bed that was foreseeably likely to be used by pedestrians as an access route, where the stump was a not insignificant tripping hazard and reasonable precautions such as removal, grinding down or barriers were available and not unduly burdensome. Although the stump was an obvious risk and the defendants were not obliged to warn of it, the failure to remove or isolate it was negligent and caused the plaintiff's fall and left knee injury. The plaintiff was also contributorily negligent because she knew of the stump...

Court Disposition

Judgment for the plaintiff after 40 per cent reduction for contributory negligence, with damages assessed at $480,319.85 and judgment entered for $288,191.91.

Orders

  • ["The plaintiff's damages are assessed in the sum of $480,319.85." "After apportioning the plaintiff's contributory negligence and the defendant's negligence in the ratio 40 per cent : 60 per cent, verdict and judgment is entered in favour of the plaintiff in the amount of $288,191.91." "The defendants are to pay...