Drinkwater v Howarth

The appeal in *Drinkwater v Howarth* concerned a dispute arising from alleged negligence. The appellants, the plaintiffs in the original proceedings, sought to overturn a decision made by the primary judge. The case was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was the interpretation and application of section 5B of the *Civil Liability Act 2002* (NSW). Specifically, the court was required to determine the significance of the legislative change from the common law test of a risk being "not far-fetched or fanciful" to the statutory test of a risk being "not insignificant." This involved considering whether this alteration in wording represented a substantive change in the legal threshold for establishing a duty of care in negligence.

The court's reasoning, particularly as articulated by Hodgson JA and Tobias JA, focused on the legislative intent behind the *Civil Liability Act*. They concluded that the change in wording from "not far-fetched or fanciful" to "not insignificant" did not fundamentally alter the legal test for the existence of a duty of care. Instead, it was seen as a clarification or rephrasing of the existing common law standard, maintaining a similar threshold for foreseeability of risk. Basten JA, while agreeing with the outcome, provided a separate analysis.

The appeal was dismissed. The appellants were ordered to pay the respondent's costs of the appeal, with a distinction made in the basis of assessment for different periods. Costs were to be on a party and party basis up to and including 4 April 2006, and on an indemnity basis thereafter. Liberty was reserved for the appellants to approach the court regarding any issues concerning the service of an offer of compromise.