Burton v Brooks

[2011] NSWCA 175

Court of Appeal

New South Wales

Case Title:

Burton v Brooks

Medium Neutral Citation:

[2011] NSWCA 175

Hearing Date(s):

21 June 2011

Decision Date:

01 July 2011

Jurisdiction:

Before:

Hodgson JA at [1]
Macfarlan JA at [2]
Tobias AJA at [49]

Decision:

Appeal dismissed with costs.
[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:

TORTS - negligence - plaintiff falls into empty swimming pool whilst assisting defendant in tree-lopping activity - family relationship - nature and content of duty of care owed by defendant as occupier of property and organiser of activity - open to defendant not to engage in activity - whether plaintiff required to prove precautions that could have been taken where it was open to defendant not to engage in activity

DAMAGES - negligence - personal injury - future economic loss - earning capacity - award of buffer to compensate plaintiff for risk that his present employment may cease in the future

Legislation Cited:

Civil Liability Act 2002
Motor Accidents Compensation Act 1999

Cases Cited:

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Agresta v Agresta [2010] NSWCA 330
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Laresu Pty Ltd v Clark [2010] NSWCA 180; [2010] Aust Torts Reports [82-068]
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Penrith City Council v Parks [2004] NSWCA 201
Stretenovic v Reed [2009] NSWCA 280
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234

Texts Cited:

Category:

Principal judgment

Parties:

Trevor Burton (Appellant)
Troy Brooks (Respondent)

Representation

- Counsel:

Counsel:
G M Watson SC/R Gambi (Appellant)
M J Cranitch SC/A D Campbell (Respondent)

- Solicitors:

Solicitors:
Moray & Agnew (Appellant)
Parramatta City Legal (Respondent)

File number(s):

CA 2010/48904

Decision Under Appeal

- Court / Tribunal:

- Before:

Garling DCJ

- Date of Decision:

12 February 2010

- Citation:

Troy Brooks v Trevor Burton

- Court File Number(s)

DC 264/2009

Publication Restriction:

Judgment

1. HODGSON JA : I agree with Macfarlan JA.

1. MACFARLAN JA : On 17 February 2008 Mr Troy Brooks, the respondent, fell backwards into an empty swimming pool at a house at Arncliffe owned and occupied by Mr Burton. Mr Burton is married to the sister of Mr Brooks' de facto partner, Ms Rita Paduano.

1. At the time of the accident Mr Brooks was assisting Mr Burton to lop trees in the vicinity of the pool. Mr Brooks suffered serious injuries as a result of the accident.

1. By the present proceedings Mr Brooks claimed damages from Mr Burton…