Baker v Gilbert

[2003] NSWCA 113

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Baker v Gilbert & 2 Ors [2003]  NSWCA 113 revised - 23/05/2003

FILE NUMBER(S):
40765/02

HEARING DATE(S):               13/05/03

JUDGMENT DATE: 23/05/2003

PARTIES:
Andrew Baker (Appellant)
Karen Gilbert (First Respondent)
Kralc Wholesale Pty Limited (Second Respondent)
Nylex Industrial Products Pty Ltd (Third Respondent)

JUDGMENT OF:       Hodgson JA Ipp JA Tobias JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 9431/00

LOWER COURT JUDICIAL OFFICER:     Garling DCJ

COUNSEL:
S Donaldson SC/P Braham (Appellant)
R Royle (First Respondent)
Submitting Appearance (Second Respondent)
Submitting Appearance (Third Respondent)

SOLICITORS:
Minter Ellison (Appellant)
Ferrier & Associates (First Respondent)
Wotton & Kearney (Second Respondent)
Curwood & Partners (Third Respondent)

CATCHWORDS:
NEGLIGENCE - OCCUPIER'S LIABILITY - The measure of the discharge of the duty of care owed by occupiers to visitors - Whether duty to inspect and maintain - Whether occupier of premises discharged their duty of care.  D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40765/02
DC 9431/00

HODGSON JA
IPP JA
TOBIAS JA

Friday 23 May 2003

ANDREW BAKER v KAREN GILBERT & 2 ORS

FACTS

The first respondent was seriously injured when she landed awkwardly after jumping (in order to avoid falling) off an unstable footplate attached to a swimming pool ladder at the premises of the appellant. Garling DCJ held that the appellant was negligent in failing to inspect and maintain the ladder adequately, and accordingly awarded damages to the first respondent. The appellant appeals on the ground that Garling DCJ wrongly held that he was in breach of the duty of care he owed the first respondent.

HELD

1. His Honour’s factual finding that the footplate was unstable and that this instability was caused by insufficiently tightened bolts was supported by the evidence and was not susceptible to challenge.

1. The basic test for liability is what a reasonable person, in the particular circumstances, would do in responding to a foreseeable risk: Hackshaw v Shaw (1984) 155 CLR 614 at 662 to 663; Australian Safeway Stores Pty Limited v Zaluzna (1986) 162 CLR 479 at 488.

1. There is no rule of law to the effect that householders, who do not know of the existence of a defect in their property that might cause danger to lawful visitors, but who are aware of circumstances which would alert a reasonable person to the danger from the defect may, without negligence on their part, ignore the existence of the defect.

1. The response of a reasonable person in the appellant’s position would have been to inspect the ladder and the footplate with due care. In the circumstances, the appellant should have known that the footplate was unstable and dangerous and therefore, should have refastened the bolts to ensure that the footplate was flush with the coaming.

ORDERS

Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40765/02
DC 9431/00

HODGSON JA
IPP JA
TOBIAS JA

Friday 23 May 2003

ANDREW…