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Gaskin v Ollerenshaw

Gaskin v Ollerenshaw

Case [2012] NSWCA 33 7 March 2012

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gaskin v Ollerenshaw [2012] NSWCA 33
Hearing dates: 17 August 2011
Decision date: 07 March 2012
Before: Basten JA at 1;
Campbell JA at 65;
Meagher JA at 1
Decision:
(1) Allow the appeal and set aside order 3 (judgment for the defendant) and order 4 (plaintiff to pay the defendant's costs) made on 16 July 2010 and entered on 12 August 2010.
(2) Direct that there be a new trial in respect of liability and contributory negligence, but not in respect of the assessment of damages.
(3) Order that the respondent pay the costs of the appellant of the proceedings in this Court.
(4) Direct that the costs of the first trial await the outcome of the new trial, to be determined by the judge conducting the new trial.
(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).
[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:
APPEAL - civil - evidence - whether evidence supports inference asserted by plaintiff - whether finding critical to the judgment - whether the judgment should be set aside

TORTS - negligence - duty of care owed by owner of premises to person coming onto premises to carry out work - whether defendant owed an extended duty of care to plaintiff based on knowledge of condition of building - whether defendant had requisite knowledge - whether defendant should have carried out further investigation - whether plaintiff should have made his own investigation
TORTS - negligence - causation - representations and assurances - whether defendant represented to plaintiff that building was safe - whether, if made, representations were without any reasonable basis - whether, if made, representations caused injury - Civil Liability Act 2002 (NSW), s 5D, "necessary condition"
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Baker v Gilbert [2003] NSWCA 113
Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134
Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1
Mobbs v Cain [2009] NSWCA 301
O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225
Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Woolworths Ltd v Strong [2010] NSWCA 282
Category: Principal judgment
Parties: Leslie Francis Gaskin - Appellant
Matthew Ollerenshaw - Respondent
Representation:
Counsel:

R W Seton SC/M J Maxwell - Appellant
R A Cavanagh SC/A J Nowen - Respondent
Solicitors:
Brydens Law Office - Appellant
Holman Webb - Respondent

File Number(s):

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.

Continue reading Gaskin v Ollerenshaw

Details

AGLC: Gaskin v Ollerenshaw [2012] NSWCA 33
Case: [2012] NSWCA 33
Decision Date: 07 March 2012

CaseChat Overview and Summary

In *Gaskin v Ollerenshaw*, the plaintiff appealed to the Court of Appeal of New South Wales against a judgment of the primary judge who had found in favour of the defendant in a negligence claim. The plaintiff had suffered injury while carrying out work on the defendant's premises.

The central legal issues before the Court of Appeal concerned whether the evidence supported the inferences asserted by the plaintiff regarding the defendant's duty of care and causation of the injury. Specifically, the court considered whether the defendant, as the owner of the premises, owed an extended duty of care to the plaintiff, a contractor, based on the defendant's alleged knowledge of the building's condition. This included whether the defendant possessed the requisite knowledge, whether further investigation by the defendant was warranted, and conversely, whether the plaintiff should have conducted his own investigation. The court also examined whether the defendant made representations or gave assurances about the safety of the building, whether such representations, if made, were without reasonable basis, and crucially, whether they caused the plaintiff's injury, applying the principles of causation under section 5D of the *Civil Liability Act 2002* (NSW).

The Court of Appeal found that the primary judge's findings were not adequately supported by the evidence, particularly in relation to the critical inferences necessary for the judgment. Consequently, the court allowed the appeal, setting aside the orders for judgment in favour of the defendant and the order for the plaintiff to pay the defendant's costs. The court directed a new trial on the issues of liability and contributory negligence, while the assessment of damages was not to be revisited. The costs of the appeal were ordered to be paid by the respondent, and the costs of the first trial were to await the outcome of the new trial.

Orders

Orders of the court

(1) Allow the appeal and set aside order 3 (judgment for the defendant) and order 4 (plaintiff to pay the defendant's costs) made on 16 July 2010 and entered on 12 August 2010.

(2) Direct that there be a new trial in respect of liability and contributory negligence, but not in respect of the assessment of damages.

(3) Order that the respondent pay the costs of the appellant of the proceedings in this Court.

(4) Direct that the costs of the first trial await the outcome of the new trial, to be determined by the judge conducting the new trial.

(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).

[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.]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Gaskin v Ollerenshaw [2012] NSWCA 33

Most Recent Citation

Edwards v Endeavour Energy; Precision Helicopters Pty Limited v Endeavour Energy; Endeavour Energy v Precision Helicopters Pty Limited (No. 4) [2013] NSWSC 1899

Cases citing this decision · 4 of 4 shown

Stokes v Toyne
[2023] NSWCA 59 Para 6

…igate the issue in another proceeding (such as expense) and, as emphasised by Allsop P, as his Honour then was, in Champerslife Pty Ltd v Manojlovski [2012] NSWCA 33 at [4] (and noted by Gageler J in UBS AG v Tyne as trustee of the Argot Trust (2018) 265 CLR 77; [2018] HCA 45 ( UBS v Tyne ) at [102]-[103] in the c…
Drew v State of New South Wales
[2015] NSWCA 159 Para 5

…ssess contributory negligence in the alternative without clearly setting out the counterfactual findings on which it is based: Gaskin v Ollerenshaw [2012] NSWCA 33 at [62]-[63]; Sexton v Homer [2013] NSWCA 414 at [84]-[85].…
Edwards v Endeavour Energy; Precision Helicopters Pty Limited v Endeavour Energy; Endeavour Energy v Precision Helicopters Pty Limited (No. 4)
[2013] NSWSC 1899

…LR 521 Fellowes (or Herd) v Clyde Helicopters Limited [1997] AC 534 Florida Hotels Pty Limited v Mayo [1965] HCA 26; 113 CLR 588 Gaskin v Ollerenshaw [2012] NSWCA 33 Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; 47 NSWLR 263 Harmer…
Sexton v Homer
[2013] NSWCA 414 Para 1

…negligence in the alternative without clearly setting out the counterfactual findings of fact on which the assessment is based: Gaskin v Ollerenshaw [2012] NSWCA 33 at [62]-[63]. As no order was made, and this finding did not in terms support the order which was made, it cannot be set aside. It should, however, b…

View all 4 citing cases →

Cases cited in this decision · 9 of 9 shown

Woolworths Ltd v Strong
[2010] NSWCA 282 Para 1

…was a necessary condition of the harm, in the sense that the harm would not have occurred "but for" the tortious conduct: see Woolworths Ltd v Strong [2010] NSWCA 282 at [48] (Campbell JA, Handley AJA and Harrison J agreeing).…
Gaskin v Ollerenshaw
[2010] NSWSC 791 Para 1

…ur delivered judgment on 16 July 2010 finding against the appellant on the question of liability and dismissing the proceedings: Gaskin v Ollerenshaw [2010] NSWSC 791.…
Mobbs v Kain
[2009] NSWCA 301 Para 1

…ddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [89]; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [59] and Mobbs v Kain [2009] NSWCA 301 at [107]. Secondly, it raises questions as to how s 5D operates in different circumstances. For example, causal relationships may involve either sequ…
Coastwide Fabrication & Erection Pty Ltd v Honeysett
[2009] NSWCA 134 Para 1

…ther authority in this Court, including Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [89]; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [59] and Mobbs v Kain [2009] NSWCA 301 at [107]. Secondly, it raises questions as to how s 5D operates in different circumstances. For example, ca…
Kuru v State of New South Wales
[2008] HCA 26 Para 1

…y, but the trial judge also dealt in a precautionary fashion and in accordance with the guidance of the High Court in Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1, with questions of contributory negligence and damages. Given the finding on liability, it was not strictly necessary for the respondent t…
Ruddock v Taylor
[2003] NSWCA 262 Para 1

…, it may require consideration of whether the statements in Woolworths were consistent with other authority in this Court, including Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [89]; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [59] and Mobbs v Kain [2009] NSWCA 301 at [107]. Seco…
Baker v Gilbert
[2003] NSWCA 113 Para 1

…In Baker v Gilbert [2003] NSWCA 113, Ipp JA (with the agreement of Hodgson and Tobias JJA) reviewed a number of authorities involving accidents which had befallen visitors to residential homes. His Honour concluded at [38]:…
Van der Sluice v Display Craft Pty ltd
[2002] NSWCA 204 Para 1

…t: see, eg, O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 at 229-230, applied in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [62] (Heydon JA, Meagher JA and Foster AJA agreeing). That, of course is not to preclude the possibility of negligent non-disclosure on the part o…
O'Connor v Commissioner for Government Transport
[1954] HCA 11 Para 1

…wn safety, having regard to the possibility of risks which are not known to the respondent: see, eg, O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 at 229-230, applied in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [62] (Heydon JA, Meagher JA and Foster AJA agreeing).…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
5D 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
51.53, 51.53(1) 2 mentions (from Para 1)
Suitors’ Fund Act 1951 (NSW)
1 mention

Medium Neutral Citation:	Gaskin v Ollerenshaw [2012] NSWCA 33
Hearing dates:	17 August 2011
Decision date:	07 March 2012
Before:	Basten JA at 1; Campbell JA at 65; Meagher JA at 1
Decision:	(1) Allow the appeal and set aside order 3 (judgment for the defendant) and order 4 (plaintiff to pay the defendant's costs) made on 16 July 2010 and entered on 12 August 2010. (2) Direct that there be a new trial in respect of liability and contributory negligence, but not in respect of the assessment of damages. (3) Order that the respondent pay the costs of the appellant of the proceedings in this Court. (4) Direct that the costs of the first trial await the outcome of the new trial, to be determined by the judge conducting the new trial. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). [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:	APPEAL - civil - evidence - whether evidence supports inference asserted by plaintiff - whether finding critical to the judgment - whether the judgment should be set aside TORTS - negligence - duty of care owed by owner of premises to person coming onto premises to carry out work - whether defendant owed an extended duty of care to plaintiff based on knowledge of condition of building - whether defendant had requisite knowledge - whether defendant should have carried out further investigation - whether plaintiff should have made his own investigation TORTS - negligence - causation - representations and assurances - whether defendant represented to plaintiff that building was safe - whether, if made, representations were without any reasonable basis - whether, if made, representations caused injury - Civil Liability Act 2002 (NSW), s 5D, "necessary condition"
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Baker v Gilbert [2003] NSWCA 113 Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 Mobbs v Cain [2009] NSWCA 301 O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Woolworths Ltd v Strong [2010] NSWCA 282
Category:	Principal judgment
Parties:	Leslie Francis Gaskin - Appellant Matthew Ollerenshaw - Respondent
Representation:	Counsel: R W Seton SC/M J Maxwell - Appellant R A Cavanagh SC/A J Nowen - Respondent Solicitors: Brydens Law Office - Appellant Holman Webb - Respondent
File Number(s):