Harrington v Indian Pacific Contracting Pty Ltd

[2005] NSWCA 120

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Harrington v. Indian Pacific Contracting Pty. Ltd. & Anor. [2005]  NSWCA 120

FILE NUMBER(S):
40117/04

HEARING DATE(S):            15 April 2005

JUDGMENT DATE: 15/04/2005

PARTIES:
Andrew James Harrington - appellant
Indian Pacific Contracting Pty. Ltd. - 1st respondent
Waterways Authority - 2nd respondent

JUDGMENT OF:      Sheller JA Hodgson JA Brownie AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 14055/01

LOWER COURT JUDICIAL OFFICER:     Sorby DCJ

COUNSEL:
Mr. B. Gross QC with Mr. J. Reimer for appellant
Mr. L. King SC with Mr. D. Ronzani for respondents

SOLICITORS:
Loukas & Co., Sydney for appellant
McCabe Terrill, Sydney for respondents

CATCHWORDS:
TORT - Negligence - Appeal dismissed - Reasons in short form.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40117/04
DC 14055/01

SHELLER JA
HODGSON JA
BROWNIE AJA

Friday 15 April 2005

HARRINGTON  V.  INDIAN PACIFIC CONTRACTING PTY. LTD. & ANOR.

Judgment

1. SHELLER JA: The appeal is dismissed with costs. The Court is of the unanimous opinion that the appeal does not raise any question of general principle, pursuant to s.45 subs.4 of the Supreme Court Act 1970. I will ask Justice Hodgson to give the Court’s reasons in short form.

2. HODGSON JA:  The primary judge correctly identified the relevant risk of injury as that of injury to the plaintiff or to a class of persons including the plaintiff, and correctly identified the relevant class of persons as those trying to scramble or swing around the end of the fence in the vicinity of the relevant pole:  see Phillis v Daly (1998) 15 NSWLR 65 at 67.

3. He correctly regarded that risk as not at all probable.  He correctly noted that the pole had stood for eight months.  In those circumstances, it was well open to him not to be satisfied that the pole should have been better secured than it was with a wire rope and shackle. 

4. In so far as his judgment can be criticised for the assertions that Mr Towson’s opinion as to the proximate cause of the plaintiff’s fall and the movement of the pole was not relevant, that there was no evidence that the pole was loose and that the duty owed by the respondent did not extend to a person such as the plaintiff, these assertions do not vitiate the judgment. 

5. As to the first, the primary judge took into account Mr Towson’s evidence as to the mechanics that could possibly explain the movement of the pole, and it is clear that Mr Towson was not in any event able to express any opinion as to what actually caused the pole to fall.

6. As to the second, the only evidence that the pole was in any sense loose was the fact of it falling, and the evidence did not justify a finding that this was due to inadequate securing rather than some other cause such as interference with the wire rope and shackle by some person other than the respondent.

7. As to the third, in its context it should be understood not as altogether denying the existence of any duty whatsoever, but as asserting that the respondent’s duty did not extend beyond what the respondent had actually done. 

8. SHELLER JA:  Accordingly, as I have said the appeal is dismissed with costs.

**********

LAST UPDATED:            18/04/2005