July 30, 2013

A spinal injury compensation claim by a Brisbane function organiser for a fall at a Valley hotspot has failed on appeal.
Karen Dowling was injured when she crashed down on slippery flooring at Fortitude Valley nightclub “the Met” whilst being conducted on a day time inspection of the dimly lit establishment to plan a night out for her travel industry colleagues.

Dowling slipped on the partly re-varnished timber floor in a corridor leading to one of the three levels of event space in the massive entertainment venue. In defence of the claim, the venue contended Karen had been specifically warned not to walk on the timber as it was in the process of being refurbished.

Duty manager Sean Noreiks was called to say he pointed to the timber and said “you can’t go there… if you follow me to my right I can take you on the concrete strip behind it and show you the main room”. Against this recollection, Karen’s version was that the manager’s warning related to the dance hall itself rather than the approach to it where she fell. She was adamant there was caution given and it was difficult to clearly see the space through which she was being led.

Ms Duck – Karen’s colleague – recalled no such warning about either floor surface.

Unhappily for Karen, the trial judge did not accept her version of events, reconciling the differences between the witness’ accounts by concluding “it may well be that in her embarrassment at having fallen over she has unconsciously reconstructed events”.

Preferring instead evidence from the man in uniform, the trial judge found then duty manager; now pilot, Noreiks to be a “very believable witness”.

A clear warning having been given by the venue  – that promotes “Party Animals”, “Hollywood Glamour” and “Party with the Stars” among its function packages – was found to have constituted an exercise of reasonable care.

Not to be denied, Dowling appealed, arguing that the trial judge had erred in his interpretation of the prevailing evidence and that if Noreiks had warned her as explicitly as claimed, it was highly improbable she would have walked across the timber against such a caution.

The Appeal judges rejected this argument as simplistic noting ‘inadvertence in the face of explicit warnings is not an uncommon feature of human behaviour’.

Likewise, that Noreiks’ oral evidence was inconsistent with his 2011 statement that made no reference to pointing out the hazard, was not enough for reversal of the lower court’s ruling: “The testimony merely provided more detail on his earlier statement rather than contradicting it”.

The Appeal court held that the trial judge’s conclusions were not glaringly improbable or contrary to compelling inferences. Karen’s appeal was dismissed with an order made against her to pay the Met’s costs.

Dowling v The Met Brisbane Pty Ltd [2013] QCA 167 Brisbane Margaret McMurdo P and Margaret Wilson and Douglas JJ 28/03/2013

Categories: Personal Injury , Litigation & Law Practice

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