Boral Bricks Pty Ltd v Cosmidis (No 2)

In Boral Bricks Pty Ltd v Cosmidis (No 2), the Court of Appeal of New South Wales considered an appeal by Boral Bricks Pty Ltd from a District Court judgment concerning a negligence claim. The dispute arose from injuries sustained by Mr Cosmidis when he was struck by a forklift operated by an employee of Boral Bricks on Boral Bricks' premises. Mr Cosmidis had been a trespasser on the premises at the time of the incident.

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.