Lisa De Marco v Italo-australian Club (ACT) Ltd ACN 106 455 314

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Master Harper
• Judgment Date: 09 April 2010
• Docket Number: No. SC 155 of 2005
• Date: 09 April 2010

[2010] ACTSC 28

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Master Harper

No. SC 155 of 2005

Between:

Lisa De Marco

Plaintiff

and

Italo-australian Club (ACT) Limited ACN 106 455 314

Defendant

Counsel for the plaintiff: ID Bradfield

Counsel for the defendant: RL Crowe SC

Jones v Bartlett (2000) 205 CLR 166

Ridis v Strata Plan 10308 (2005) 63 NSWLR 449

Sauer v Australian Capital Territory (2007) 209 FLR 371; [2007] ACTSC 18

Cardone v Trustees of the Christian Brothers [1994] ACTC 85

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Wyong Shire Council v Shirt (1980) 146 CLR 40

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460

Neindorf v Junkovic (2005) 222 ALR 631

NEGLIGENCE — occupier's liability — personal injury — static condition — tiled external surface — slippery when wet — Australian standard introduced subsequently — duty of occupier to entrant — negligence not established.

DAMAGES — personal injury — slip and fall — low back injury — no issue of principle.

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the defendant.

2. The plaintiff pay the defendant's costs.

1 On 27 March 1999 the plaintiff was a guest at a wedding reception at the club conducted by the defendant in Franklin Street, Forrest. As she was leaving the reception to go home at the end of the evening, she lost her footing and fell, suffering personal injury. Her claim is for damages for negligence.

2 The plaintiff was born in 1967. She was thirty-one at the time of the accident, and is now forty-three. She is a married woman with three children, boys born in 1989 and 1993 and a daughter born in 1997. She was carrying the daughter, then about fifteen months old, when she fell.

3 My conclusion is that the plaintiff's injury was not the result of any negligence on the part of the defendant so that her claim must fail. These are my reasons.

The plaintiff's fall — the lay evidence

4 The plaintiff and her family had attended a wedding at a church at Queanbeyan during the afternoon. The groom was a cousin of hers, and her husband was the driver of one of the cars which had been hired for the bridal party. It was a wet and windy day. The plaintiff's evidence was that the rain became heavier as the day progressed.

5 The reception began at the club at 6.00 pm. Because her husband was acting as a chauffeur, the plaintiff drove the family car to the club with her children and parked it in a parking area adjacent to the club. Her evidence was that when they arrived it was raining quite heavily and was windy. The family walked from the car to the front entrance of the club. She noticed that the tiles outside the front door were wet. The plaintiff's recollection was that she was wearing comfortable shoes with a medium-height heel. Her recollection was that the shoes had rubber soles but she was uncertain about this, making the point that the wedding had been nine years earlier by the time she gave her evidence. She went into the club without incident.

6 About an hour later she went back out to her car to get her camera. It was still raining, and she said that as she walked out she had to correct her balance because she ‘nearly had a slight slip’. This occurred ‘just out onto the tiled area as you step out’.

7 The bride and groom left the reception at about midnight, and the guests went downstairs to the foyer to farewell them. The plaintiff's husband went outside to get the bridal car and drive it to the entrance of the club to collect the bridal party. The plaintiff said that she took about three paces out on to the tiles when she slipped and fell on to her back. She did not remember which foot slipped. The plaintiff fell in such a manner that her daughter's foot was crushed behind her back. The plaintiff said that she felt instant pain and throbbing on both sides of her back, although it is apparent that her major concern immediately after the fall was for the little girl, who turned out to have fractured a bone in her foot.

8 Counsel for the plaintiff asked her whether she noticed anything about the tiles when she fell. Her answer was ‘just that they were slippery’.

9 The plaintiff conceded in cross-examination that she knew that the tiled area outside the front doors outside the club, although covered by a portico structure, was not protected from wind and rain. She knew that the area was wet on the night. She agreed, from her own experience, that virtually any floor surface was more slippery wet than dry. She agreed that she was probably a little unbalanced by reason of the fact that she was carrying her daughter on her hip.

10 As the cross-examination proceeded, the plaintiff described the tiles as ‘wet and greasy’. She said that the tiles had felt greasy when she had slipped earlier in the night. She conceded that she had not observed any foreign substance on the tiles, and did not feel the tiles with her hand. Her description of the tile being wet and greasy was solely based on the sensation of her foot slipping on it.

11 The plaintiff's husband gave evidence generally consistent with that of the plaintiff. He said that on the day of the wedding it had started to rain lightly at about 11.00 am and had gradually got heavier. The rain was lighter when the bridal party arrived at the church. It had become heavier at the end of the church service as they were leaving. It was raining so heavily that photographs which were to have been taken outside the church were taken inside. He said that he had arrived, driving one of the bridal cars, between 6.00 and 6.30 pm at the club. He said that ‘it was pelting down and it was still raining heavily’. It was also windy. He volunteered that he needed to have the windscreen wipers on even when the bridal car was stopped under the portico. He described water coming from the portico ‘sort of like a little waterfall’ on to the roof of the car. He described water as gushing out of downpipes in the portico roof. It was his responsibility to escort one of the bridesmaids in to the club. He described the tiled surface under the portico as ‘very greasy and slippery’. He and the other drivers had taken the hired cars to the airport to return them, and come back to the reception between 7.00 and 7.30 pm. He said that it was about midnight when they left. He asked the plaintiff to wait near the front door with the children and not to go out because it was still raining, while he collected the family car from the parking area. It was raining at that time and the windscreen wipers were on. He stopped the car under the portico, and looked up in time to see the plaintiff fall. He said that as he got out of the car he ‘sort of had to hang on to the bonnet in order to come around because it was wet and slippery’. In the course of his evidence, Mr De Marco volunteered information, non-responsively to the questions he had been asked, that the conditions were wet and slippery. He appeared at considerable pains to help his wife's case, and came over to me as something of an advocate for her.

12 Supporting evidence was given by a number of others who had been at the wedding. The groom said that he and the bride left the reception between 11.00 pm and midnight, and that it was raining fairly heavily at that time. He walked to his car in the car park and drove to the club entrance to collect his new bride. He opened the car door and got out. He said, ‘I noticed my foot kind of slipped from beneath me while I was sitting down: it was slippery because it had been raining and there was a lot of water.’ He agreed in cross-examination that he had made no record of the events at the time and had been asked to recall the incident only about three weeks before the hearing.

13 The plaintiff's sister had also been at the wedding. She recalled the weather as wet and windy. In response to a question whether she had made any observation of the paving tiles outside the front doors of the club, she responded, ‘I just remember it being slippery when walking in and out of the club, and I remember my husband grabbing me, because I was pregnant, to make sure I didn't fall.’

14 Another guest at the wedding gave evidence that as she was leaving the reception, she saw an elderly lady almost lose her footing on the tiles outside the front doors. It was raining heavily and very wet. The elderly lady did not actually fall, perhaps because she was steadied by a person who was accompanying her.

15 A friend and work colleague of the plaintiff's husband gave evidence about two incidents which he observed in 2003. He had not been at the wedding. The incidents he recalled happened at a subsequent wedding on another wet day. He said that he observed a woman slip as she came out the front doors of the club on to the tiled surface. She grabbed on to her companion and stopped herself from falling.

16 About ten minutes later, the witness saw another woman walk out with the partner, and virtually the same thing happened to her. Again she did not fall to the ground. The witness agreed in cross-examination that his perception was that the area became slippery when it was very wet. He was careful when walking on it, and he warned his own wife about it. Counsel for the defendant put to him that his wife did not lose her footing or fall over. His answer was ‘No, because I made her aware that to be careful’ [sic]. It was put to him that he had been careful himself and had not fallen over. He answered, ‘No, because I saw two people fall so I didn't want to break my leg as well.’ There had in fact been no suggestion that either of the other people had fallen at all, let alone that either of them had broken a leg.

17 Garry McLaughlin was secretary-manager of the club from about 1997 to 2001, a period including the date of the plaintiff's injury....