Supermarket Slips – Bringing a Claim can be a Slippery Slope
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The NSW Court of Appeal recently reversed a finding in favour of a customer who slipped and suffered injury in a Coles Supermarket. The customer gave evidence that she slipped in a supermarket aisle and hurt herself; and that after the fall she noticed two pieces of cardboard on the floor adjacent to the fall. She did not see them before the fall. The trial judge found, as a matter of probabilities, that the customer trod on the cardboard and that this was what caused her to fall.
The Court of Appeal disagreed. It said the mere fact that the cardboard was on the floor in the vicinity of the fall did not make it more likely than not, that the customer stepped on the cardboard and that this caused her to fall. As a matter of law, the customer had the obligation to positively prove that she in fact stepped on the cardboard (and that the cardboard was a risk that Coles should have removed). The Court of Appeal said that on the evidence it was equally possible the customer had slipped without having stepped on the cardboard and she had therefore not positively proved a necessary part of her claim.
Property Owners Might Still Be Liable- Even When a Contractor Does The Work
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
A licensed club in the ACT was recently found liable for the consequences of an electrical shock suffered by two visitors who came into contact with a defective neon light. The light was located under the lip of, and on the public side of, a reception counter. There was no dispute the two visitors had suffered electric shocks; and there was also ultimately a finding that the particular light was not properly installed in accordance with the appropriate Australian and New Zealand standard.
The electrical work had been done by a properly qualified electrical contractor that had been engaged by the club. Both the club and the contractor were sued for damages. The club defended the proceeding on the basis that it should not be held legally responsible for work that had been carried out by a licensed electrical contractor; and that it was entitled to believe the contractor had carried out the work properly. The Court found that whilst the club was not responsible for the defective electrical installation; it was on notice that a panel of glass – which should have “sealed” the electrical fitting out of reach of visitors had been broken prior to the event. The Court concluded the club was on notice that there was “a” risk that visitors, and particularly children, might suffer injury from coming into contact with the broken glass. It was not necessary that the club specifically appreciate there was a risk that visitors might suffer electrical shock from the defective electrical installation.
Appointing Attorneys – Jointly or Jointly and Severally
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
The Powers of Attorney Amendment Act 2013 came into effect earlier this year. As from 13 September 2013 the form of an Enduring Power of Attorney is different to that for a non enduring Power of Attorney.
Section 46 (1) of the Powers of Attorney Act provides that if the Power of Attorney appoints two or more persons as joint Attorneys then the Power of Attorney is terminated if one or more of the Attorneys renounces the power, dies, becomes bankrupt, ceases to have the capacity to continue to act as an Attorney (because of any physical or mental incapacity) or if the appointment of the attorney is revoked.
Access to NSW Birth Certificates for Children of Overseas Adoption
Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Until recently, children who have been adopted from overseas and whose adoptions have been finalised overseas, have been unable to obtain a Birth Certificate from the NSW Births, Deaths and Marriages. Instead these children have to rely on their adoption papers as identification.
In a move to remedy this issue, the NSW Government has recently passed legislation whereby children of legal adoptions completed overseas, but assisted by the state authorities, will be entitled to a NSW birth certificate.
This is a move which has relieved many adoptive parents whose children currently have to use adoption papers referring to the child as “abandoned” or “parents unknown” as identification, rather than a Registration of Birth Certificate as used by their Australian-born friends and family members. Children born in China are provided with a “Certificate of Abandonment” which forms part of the adoption papers. The risk of embarrassment to these children is clear when one considers the usual use of such identification documents, for example to enrol in school, join sporting clubs and obtain a drivers’ licence.