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Rita Yousef: Setting the record straight

There's no doubt commercial leasing agents have a hefty workload but a recent decision in a legal case involving a major supermarket retailer has emphasised the importance of dotting your i's and crossing your t's. As personal injury lawyer Rita Yousef explains, the agent's diligence, attention to detail and excellent record keeping meant when a shopper was injured onsite it could easily be shown the real estate agency was not at fault.

Ms Jacqueline Pike was injured when she fell on 20 January 2015 in the car park of a Coles supermarket at Cambridge Gardens Shopping Centre. The shopping centre is located in Cambridge Park, New South Wales.

Ms Pike’s claim for compensation was heard and determined by Justice Walton of the Supreme Court of New South Wales, with the judgment being handed down on 19 November 2021. 

At the time of the accident, Ms Pike had returned to her car, which was parked in the subject car park, after doing her shopping at Coles. As she packed her shopping into her car, Ms Pike stepped back into an uncovered drainage pipe. This caused her to fall. 

Ms Pike, who was 48 years old at the time of the accident, suffered a fracture of her lower spine that led to her having spinal surgery in 2016. Unfortunately, the surgery was not successful in that she continues to experience significant and permanent disability. 

Ms Pike sued Coles and the owners of the shopping centre. 

The property was managed by Raine & Horne Commercial Retail Services (RHC). Notably, no cross-claim was filed against Raine & Horne. 

A key consideration in determining who was responsible for Ms Pike’s fall was the issue of who had control of and responsibility over the relevant car park area. Central to this issue were the terms of the lease under which Coles occupied the premises as well as the agreement between Raine & Horne and the owners.

There was an Exclusive Commercial, Industrial and Retail Management Agency Agreement between the owners and Raine & Horne. Significantly, Raine & Horne was required to manage the property by, among other things:

  1. Undertaking property inspections.
  2. Engaging appropriately qualified or licensed personnel to complete repairs and maintenance. Work costing more than $1000 required approval unless there was an emergency/essential requirement.
  3. Provide inspection reports. 

Ms Karen Skinner was the manager at Raine & Horne who was responsible for the shopping centre at the time of Ms Pike’s accident.

In the court proceedings, Ms Skinner provided a written evidentiary statement, which contained the lease, the agency agreement, pertinent correspondence and inspection reports, among other things.

Ms Skinner’s statement and accompanying documents proved that she attended the shopping centre at least every month to conduct thorough inspections.

She also prepared reports, managed major repair works and prepared budgets. There was proof that Ms Skinner regularly corresponded with Coles and the owners.

She outlined any repair/maintenance requirements in detail. Ms Skinner was able to prove, through her thorough record-keeping, written communications and reporting that she had last inspected the car park in late December 2014 (less than a month before the accident) and that on that occasion, she had not noticed any problem with the drainage pipe.

Her track record and the written records helped to prove that she, and therefore Raine & Horne, had not failed in the obligations under the agreement.  

The court found that Coles was liable for the injuries, loss/damage that Ms Pike suffered as a result of the fall. 

The court found that the owners were not liable. 

While ultimately, Ms Pike’s claim was weakened by surveillance footage that revealed she had not been completely honest about the extent of the impact of her injuries, the court ordered Coles to pay her compensation.

The court awarded Ms Pike about $250,000 in compensation to cover her losses and damage, in addition to legal costs. 

This case is a good reminder for real estate agents to:

  1. Ensure any agreements to which they are a party are clearly drafted in terms of identifying specifically who is response for inspections, reporting, as well as arranging repairs and maintenance work
  2. Perform all duties according to the relevant agreements to which they are a party.
  3. Communicate frequently, clearly and in writing about those obligations and as part of fulfilling those obligations. 
  4. Keep proper, thorough and clear records of all steps taken to fulfil those obligations.

Had Ms Skinner failed to firstly become aware of and understand Raine & Horne’s obligations, then to proceed to communicate, perform the required inspections and keep proper records, Raine & Horne may well have been sued in this case, along with Coles and the owners

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Rita Yousef

Rita Yousef is a senior associate and accredited specialist in personal injury law at MTM Legal. For more information visit mtmlegal.com.au