Legal Research
Cases
Consolidated Broken Hill Ltd v Edwards

Consolidated Broken Hill Ltd v Edwards

Link copied

Case Copied 11 November 2005 29 min read

Contents

On this page

NEW SOUTH WALES COURT OF APPEAL

CITATION: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380

FILE NUMBER(S):
40374/05

HEARING DATE(S): 02/11/05

JUDGMENT DATE: 11/11/2005

PARTIES:
Consolidated Broken Hill Ltd (Appellant)
Trevor John Edwards (Respondent)

JUDGMENT OF: Giles JA Ipp JA Hunt AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20240/03

LOWER COURT JUDICIAL OFFICER: Grove J

COUNSEL:
I G Harrison SC/J B Turnbull (Appellant)
B J Gross QC/R Wilkins/D Williams (Respondent)

SOLICITORS:
McCabe Terrill (Appellant)
Doyle Kingston & Swift (Respondent)

CATCHWORDS:
NEGLIGENCE-- occupier's liability -- occupier of private land -- duty of care to trespassers it allowed to pass over its land -- approach to risks -- relevance to breach of duty -- whether reasonable response by occupier to obviousness of risk.
NEGLIGENCE -- contributory negligence -- where deliberate and voluntary decision to undertake obvious and serious risk -- relevance of personal responsibility in apportionment of liability -- plaintiff's duty to take care for own safety.
Section 5R of Civil Liability Act.

LEGISLATION CITED:
Civil Liability Act 2002 (NSW)

DECISION:
The Appeal is upheld, verdict and judgment set aside and in lieu thereof there will be verdict and judgment for Mr Edwards in the sum of $912,915. Mr Edwards is to pay the costs of the appeal and is allowed a certificate under the Suitors Fund Act 1951 (NSW) if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40374/05
SC 20240/03
GILES JA
IPP JA
HUNT AJA
Friday 11 November 2005

CONSOLIDATED BROKEN HILL LIMITED v TREVOR JOHN EDWARDS

JUDGMENT

GILES JA: I agree with Ipp JA
IPP JA:
The issues on appeal
The first issue in this appeal concerns the liability in negligence of an occupier of private land to an entrant who was part of a class of persons that the occupier allowed, without objection, to pass over its land. The second concerns the degree of contributory negligence, if any, of which the entrant in this particular case was guilty, and the appropriate apportionment of liability to be applied.
The appeal is from a judgment of Grove J in an action by the entrant to the land (who is the respondent, Mr Edwards) against the occupier (who is the appellant, CBH) for damages for personal injury. His Honour found that CBH had negligently caused Mr Edwards to sustain serious injuries that rendered him paraplegic. He found that Mr Edwards had been guilty of contributory negligence and apportioned liability by attributing one third of the responsibility of the damage to him and two-thirds to CBH. The parties agreed the amount of Mr Edwards’s damages and the judge handed down judgment in his favour.
CBH appeals on the grounds that his Honour erred in finding that it breached its duty of care, alternatively, in failing to attribute a greater share of responsibility for his damage to Mr Edwards.
The circumstances under which Mr Edwards was injured
Mr Edwards was injured when he was riding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Consolidated Broken Hill Ltd v Edwards and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWCA 380
Decision Date: 11 November 2005

CaseChat Overview and Summary

In *Consolidated Broken Hill Ltd v Edwards*, the New South Wales Court of Appeal considered an appeal concerning an occupier's liability to a trespasser and the apportionment of damages. The dispute arose from an incident where Mr Edwards suffered injuries while on land owned by Consolidated Broken Hill Ltd (CBH).

The primary legal issues before the Court of Appeal were whether CBH owed a duty of care to Mr Edwards, a trespasser whom CBH had permitted to pass over its land, and if so, whether CBH had breached that duty. The Court was also required to determine the extent of Mr Edwards's contributory negligence and how liability should be apportioned between the parties, particularly in light of the deliberate and voluntary decision by Mr Edwards to undertake an obvious and serious risk. The application of section 5R of the *Civil Liability Act* was also relevant to the assessment of breach of duty.

The Court of Appeal found that the primary judge had erred in failing to apportion liability equally between the parties. While acknowledging that CBH owed a duty of care to Mr Edwards, the Court determined that Mr Edwards's own actions and his deliberate assumption of a known risk warranted a greater degree of personal responsibility than had been attributed by the trial judge. The Court applied principles of negligence and contributory negligence, considering the reasonableness of CBH's response to the obviousness of the risk and the plaintiff's duty to take care for his own safety.

The Appeal was upheld, and the original verdict and judgment were set aside. In lieu thereof, a verdict and judgment were entered for Mr Edwards in the sum of $912,915, representing an equal apportionment of the agreed damages of $1,825,830. Mr Edwards was ordered to pay the costs of the appeal and was allowed a certificate under the *Suitors Fund Act 1951* (NSW) if otherwise qualified.

Orders

Orders of the court

The Appeal is upheld, verdict and judgment set aside and in lieu thereof there will be verdict and judgment for Mr Edwards in the sum of $912,915. Mr Edwards is to pay the costs of the appeal and is allowed a certificate under the Suitors Fund Act 1951 (NSW) if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my opinion, liability for the damage should have been apportioned equally and his Honour erred in failing to do so.Conclusion The agreed damages amounted to $1,825,830. As the judge’s finding was that Mr Edwards’s share of responsibility for the damage was one-third and that of CBH two-thirds, his Honour entered a verdict and judgment for Mr Edwards for $1,217,220. In my opinion, the appeal should be upheld, the verdict and judgment should be set aside and in lieu thereof there should be entry of a verdict and judgment for Mr Edwards in the sum of $912,915. I would order Mr Edwards to pay the costs of the appeal. He should be allowed a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified. HUNT AJA: I agree with Ipp JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.