Dorothy Brown v Noel Sibraa

[2013] HCASL 95

DOROTHY BROWN

v

NOEL SIBRAA

[2013] HCASL 95
S324/2012

1. The applicant and respondent were neighbours.  On 8 May 2007, the applicant was injured when she fell over some welded wire mesh that had been left on the respondent's front lawn.  The accident occurred at night and the respondent's front lawn was not illuminated.  The applicant had seen the mesh on the lawn earlier on the day of the accident.

2. The applicant brought an action in negligence in the District Court of New South Wales (Neilson DCJ) against the respondent.  Neilson DCJ held that the applicant had been injured as a consequence of the respondent's negligence and awarded damages, reduced by 25 per cent for the applicant's contributory negligence.

3. The respondent appealed against the decision of Neilson DCJ. The Court of Appeal of the New South Wales Supreme Court (Campbell JA; Hoeben JA and Tobias AJA agreeing) allowed the respondent's appeal. With reference to s 5B(1)(c) of the Civil Liability Act 2002 (NSW), Campbell JA held that the trial judge was mistaken in holding that a reasonable person in the respondent's position would have taken the precautions that the trial judge identified.

4. The applicant now seeks leave to appeal to this Court.  The applicant challenges the Court of Appeal's use of previous decisions concerning the extent of the duty owed by a householder to take reasonable care to avoid injury to someone entering their premises.  It is said that the Court of Appeal erred by applying "community standards" to interpret the relevant statutory provisions.  It is also said that the Court of Appeal failed to provide "specific identification" of the reasons why a person in the respondent's position would not have taken the precautions the trial judge identified.  Additionally, the applicant contends that the Court of Appeal erred by failing to consider the nature of the relationship between the parties.

5. The application must be dismissed.  No question of principle arises:  the applicant's complaint is about the application of settled principle to the facts of this case.  Further, the applicant's draft notice of appeal and written summary of argument do not identify any argument with sufficient prospects of success to warrant the grant of special leave. 

6. Pursuant to rule 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

S.M. Kiefel
5 June 2013 P.A. Keane