Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Hearing dates: On the papers Decision date: 07 May 2014 Before: McColl JA at [1];
Basten JA at [75];
Emmett JA at [128]Decision: (1) Allow the appeal in part and set aside order (1) made by the District Court on 13 September 2012.
(2) In place thereof, give judgment for the plaintiff against the first defendant in the amount of $717,970, such judgment to date from 13 September 2012.
(3) Make no order as to the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORT - negligence - contributory negligence -- general principles - duties of an occupier to ensure safety of premises for an entrant - whether culpability greater when controlling potentially dangerous vehicle - standard of care under the Civil Liability Act - apportionment under Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b); Motor Accidents Compensation Act 1999 (NSW), s 138; Civil Liability Act 2002 (NSW), ss 5B, 5R.
TORT - negligence - contributory negligence - pedestrian injured in motor vehicle accident - apportionment of liability - respondent injured by a forklift on appellant's premises - failure by respondent to keep a proper lookout - relative culpability of the parties
WORDS and PHRASES - "common law"Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5F, 5R, s 5S; Divs 4, 8, Pt 1A
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), ss 9, 10
Motor Accidents Act 1988 (NSW), ss 72, 74
Motor Accidents Compensation Act 1999 (NSW), s 138Cases Cited: Ackland v Commonwealth of Australia [2007] NSWCA 250
ACQ Pty Ltd v Cook [2008] NSWCA 161; 72 NSWLR 318;
Alford v Magee [1952] HCA 3; 85 CLR 437
Anikin v Sierra [2004] HCA 64; 79 ALJR 452
Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50; 304 ALR 1
Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479
Boral Bricks v Cosmidis [2013] NSWCA 443
Carey v Lake Macquarie City Council [2007] NSWCA 4
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Aust Torts Reps ¶81-815
Cook v Cook [1986] HCA 73; 162 CLR 376
Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208
Evers v Bennett (1982) 31 SASR 228
Frost v Kourouche [2014] NSWCA 39
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- Case
- [2014] NSWCA 139
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding Boral Bricks liable in negligence, and if so, whether the apportionment of liability between the parties was correct. Specifically, the court had to consider the standard of care owed by an occupier to a trespasser, the relevance of the dangerous nature of the forklift, and the principles of contributory negligence and apportionment of liability under the relevant New South Wales legislation, including the *Law Reform (Miscellaneous Provisions) Act 1965* and the *Civil Liability Act 2002*.
The Court of Appeal found that while Boral Bricks owed a duty of care to Mr Cosmidis, even as a trespasser, the trial judge had erred in certain aspects of the assessment of liability and apportionment. The court applied common law principles regarding the duty of care owed by occupiers and the statutory provisions governing negligence and contributory negligence. The court determined that Mr Cosmidis's failure to keep a proper lookout contributed to his injuries, and that the apportionment of liability needed to be adjusted to reflect the relative culpability of both parties.
The Court of Appeal allowed the appeal in part, setting aside the original District Court order and substituting a new judgment for the plaintiff, Mr Cosmidis, against Boral Bricks Pty Ltd in the amount of $717,970, with the judgment to date from 13 September 2012. No order was made as to the costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal in part and set aside order (1) made by the District Court on 13 September 2012.
(2) In place thereof, give judgment for the plaintiff against the first defendant in the amount of $717,970, such judgment to date from 13 September 2012.
(3) Make no order as to the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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