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Leave to appeal – slip and fall case…

compensation law casenotes

…challenge to factual findings of trial judge re obvious risk, breach of duty and limitation

The applicant, Mr Khanna, alleges he suffered injuries on 18 April 2015 at a Masters Home Improvement store operated by the respondent at Rouse Hill, New South Wales. 

He was shopping with his wife who, he alleges, tripped on the leg of a stack of chairs negligently placed at the end of an aisle by the respondent’s staff, which created a trip hazard.

Mr Khanna alleged that his wife tripped and fell, and that, in the process of attempting to stop her falling, he fell – causing injuries to himself.

The trial judge found that Mr Khanna’s wife tripped on the front legs of the chairs, causing her to fall and land on her knees, suffering injury. The trial judge also found that Mr Khanna fell, injuring his right knee, but not falling backwards and hitting his head as he asserted.

The trial judge further found that Mr Khanna had failed to commence court proceedings within the requisite three-year limitation period, and, in the event that conclusion was wrong, considered Mr Khanna’s claim in negligence – finding that, although he and his wife were owed a duty of care by the respondent, it had not breached that duty, and the risk of harm posed by the stacked chairs was an obvious one. 

His Honour also rejected the respondent’s defence of contributory negligence and assessed Mr Khanna’s damages (in the event that he did successfully appeal the primary judgment) in the amount of $56,294.60.

Having failed at first instance, Mr Khanna, who was self-represented, sought leave to appeal on various grounds including the primary judge’s findings with respect to (no finding of)  breach of duty, and (the finding of) obvious risk and the extent of his injuries.

The respondent opposed the leave being sought by Mr Khanna.

Decision

  1. Leave to appeal refused
  2. Applicant to pay the respondent’s costs.

Ratio

Two procedural issues raised by Mr Khanna (regarding the production of documents in response to a notice to produce, and the primary judge’s refusal to issue a subpoena to Woolworths upper management) were rejected.

In dismissing the remaining grounds of appeal, Gleeson JA referred to the findings of the primary judge, finding that there was no “fairly arguable basis” for Mr Khanna in challenging them.

An attempt by Mr Khanna to widen the allegations of negligence in his pleadings was rejected, as was that with respect to obvious risk, again on the grounds that there was no arguable basis for challenging the findings of the primary judge.

In summary, leave to appeal was refused on the basis that the proposed appeal did not raise any issue of principle or question of general public importance, nor any injustice suffered by the applicant, Mr Khanna.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Trent Johnson, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.

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