Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273

Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273


Decision (1) Grant leave to appeal against the judgment given in the District Court on 5 April 2012.(2) Deem the notice of appeal filed on 5 July 2012 to have been properly filed and served in accordance with the rules.

(3) Allow the appeal and set aside the judgment for the defendant given in the District Court, except the order as to costs.

(4) In place thereof, give judgment for the plaintiff against the defendant in an amount of $886.50, such judgment to take effect on 5 April 2012.

(5) Order that the appellant pay the respondent’s costs in this Court.


Catchwords TORTS – negligence – occupier’s liability – appellant fell in respondent’s supermarket – where appellant slipped on wet floor left unattended for several minutes while wet floor warning signs were in place – whether respondent breached its duty of care to appellant in circumstances by failing to take reasonable precaution against risk – causation – where primary judge took into account own observations of appellant in witness box – assessment of damages where medical expert witnesses not cross-examined despite conflicting opinions – contributory negligence – whether appeal as of right under s 127 of District Court Act 1973 – where primary judge assessed damages, if respondent were liable, at $1773 – sufficiency of appellant’s affidavit as to whether appeal as of right under UCPR r 51.22(2) – leave granted 


David Cormack – Brisbane Barrister.

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