Gaskin v Ollerenshaw

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.