Caruana v Darouti

[2014] NSWCA 85

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Caruana v Darouti [2014] NSWCA 85

Hearing dates:

06/03/2014

Decision date:

28 March 2014

Before:

Emmett JA at [1];
Leeming JA at [50];
McDougall J at [54]

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 - occupier's liability - respondent slipped on appellant's driveway - whether appellant was negligent in resealing driveway - whether slip was reasonably foreseeable in circumstances where no prior accident - whether accident was caused by a positive act - whether reasonable care extended to erecting a handrail - whether trial judge failed to have regard to authorities - application of s 5B of the Civil Liability Act 2005 (NSW) to positive acts

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 34
Civil Procedure Act 2005 (NSW), s 56(3)
Evidence Act 1995 (NSW), s 79

Cases Cited:

Drinkwater v Howarth [2006] NSWCA 222
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Fitzsimmons v Coles Supermarket Australia Pty Ltd [2013] NSWCA 273
Francis v Lewis [2003] NSWCA 152

Category:

Principal judgment

Parties:

Rita Caruana as executor of the estate of the late Antoinette Caruana and on her own behalf (Appellant)
George Darouti (Respondent)

Representation:

Counsel:
SE McCarthy / ND Compton (Appellant)
RS Sheldon SC / MA Campbell (Respondent)
Solicitors:
AR Conolly & Company Lawyers (Appellant)
Maxwell Berghouse & Ives Solicitors (Respondent)

File Number(s):

2013/119257

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-04-04 00:00:00

Before:

Kearns DCJ

File Number(s):

2011/130146

Judgment

1. EMMETT JA: This appeal arises out of injuries suffered by the respondent, Mr George Darouti, when he slipped and fell on the driveway of a property situated in Seaforth, New South Wales (the Property). The appellant, Ms Rita Caruana, was an occupier of the Property at the time of the fall and Mr Darouti sued Ms Caruana in the District Court. Mr Darouti also sued Coastline Concreting Pty Limited (Coastline), which had constructed the driveway.

1. Coastline did not appear and judgment was entered against it for damages to be assessed. After a trial in the District Court, the District Court found a verdict against Ms Caruana in favour of Mr Darouti and entered judgment against Ms Caruana and Coastline in the sum of $121,560. Ms Caruana now appeals from the orders made by the District Court.

The Circumstances of Mr Darouti's Fall

1. The Premises were owned by Ms Caruana's mother, Mrs Antoinette Caruana and, since February 1979, Ms Caruana had lived in the Premises with her mother. Mr Darouti was Mrs Caruana's nephew and…