Hanna-Pauley v Amp Shopping Centres Pty Ltd

[2007] WASCA 174

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Occupier's liability
4. › Condition of premises
5. › Step at exit from shopping centre
6. › Whether step posed foreseeable risk of injury greater than risk inherent in stairs generally
7. › Whether breach of duty causative of injury
8. › Whether risk obvious and plaintiff familiar with it
9. › Occupiers Liability Act 1985 (WA), s 5
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Preference for evidence of one witness over another
5. › Whether finding open on the evidence

Quick Take

Where an occupier's breach of duty consists of failure to warn of a risk that is obvious and with which the plaintiff is familiar, the breach will not be causative of injury. A step that is higher than usual does not necessarily pose a risk greater than that inherent in stairs generally, and without expert evidence, a court cannot determine whether modifications would reduce the risk. Issues not raised in the pleadings cannot be raised on appeal.