Court of Appeal
New South Wales
Case Title: Hoffmann v Boland Medium Neutral Citation: [2013] NSWCA 158 Hearing Date(s): 3, 4 April 2013 Decision Date: 06 June 2013 Before: Basten JA at [1];
Barrett JA at [41];
Sackville AJA at [45]Decision: CA 2012/194919 (Reverend Hoffmann's appeal)
1. Grant leave to appeal.
2. Allow the appeal against the First Respondent.
3. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents.
4. Set aside Order (i) made by RS Hulme J on 29 May 2012.
5. In lieu of Order (i), verdict and judgment for the First Defendant against the Plaintiff.
6. The First Respondent pay the Appellant's costs of the appeal insofar as they relate to the appeal against the First Respondent.
7. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal insofar as they relate to the appeal against them.CA 2012/266953 (Plaintiff's Appeal)
1. Grant leave to appeal.
2. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents.
3. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal.CA 2012/194919 and CA 2012/266953 (Costs of the Trial)
In both appeals:
1. Set aside Orders 1, 2, 3 and 6 made by RS Hulme J on 5 June 2012.
2. In lieu thereof, Order that the Plaintiff pay:
(a) the First Defendant's costs of the Plaintiff's claim against the First Defendant;
(b) the Second Defendant's costs of the Plaintiff's claim against the Second Defendant; and
(c) the Third, Fourth, Fifth and Sixth Defendants' costs of the Plaintiff's claim against them.
3. The First Defendant pay the Second, Third, Fourth, Fifth and Sixth Defendants' costs of the First Defendant's cross-claim against them.CA 2012/266987 (Plaintiff's Summons for Leave to Appeal on Costs)
1. Summons seeking leave to appeal dismissed.
2. No order as to costs.
3. Summons seeking leave to cross-appeal dismissed.
4. No order as to costs.[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: TORTS - negligence - personal injury - plaintiff injured as infant by falling down stairs while being carried - whether plaintiff's grandmother owed her a duty of care - whether plaintiff's grandmother negligent in manner in which she descended stairs - whether designer of the staircase or the builder responsible for renovations failed to take reasonable care in design and construction of staircase
COSTS - whether Sanderson order appropriateLegislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 23
Civil Liability Act 2002, ss 5B, 5C, 5D, 5E, Pt 1A, Div 2
Civil Procedure Act 2005, s 98
Supreme Court Act 1970,…
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- AGLC
- Hoffmann v Boland [2013] NSWCA 158
- Case
- [2013] NSWCA 158
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the plaintiff's grandmother owed a duty of care to the infant plaintiff and, if so, whether she was negligent in the manner in which she descended the stairs. Additionally, the court considered whether the designer of the staircase or the builder had failed to take reasonable care in its design and construction. The appeals also involved questions regarding the appropriate orders for costs, including whether a *Sanderson* order was appropriate.
The Court of Appeal allowed the appeal against the grandmother (the First Respondent), finding that she was not liable. The appeals against the other respondents (the designer and builder) were dismissed. The court set aside the initial judgment and entered a verdict and judgment for the grandmother against the plaintiff. The court also made significant orders regarding the costs of the appeals and the trial, generally ordering the plaintiff to pay the costs of the defendants against whom her claims were dismissed, and the first defendant to pay the costs of the other defendants in relation to a cross-claim.
Orders
Orders of the court
CA 2012/194919 (Reverend Hoffmann's appeal)
1. Grant leave to appeal.
2. Allow the appeal against the First Respondent.
3. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents.
4. Set aside Order (i) made by RS Hulme J on 29 May 2012.
5. In lieu of Order (i), verdict and judgment for the First Defendant against the Plaintiff.
6. The First Respondent pay the Appellant's costs of the appeal insofar as they relate to the appeal against the First Respondent.
7. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal insofar as they relate to the appeal against them.
CA 2012/266953 (Plaintiff's Appeal)
1. Grant leave to appeal.
2. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents.
3. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal.
CA 2012/194919 and CA 2012/266953 (Costs of the Trial)
In both appeals:
1. Set aside Orders 1, 2, 3 and 6 made by RS Hulme J on 5 June 2012.
2. In lieu thereof, Order that the Plaintiff pay:
(a) the First Defendant's costs of the Plaintiff's claim against the First Defendant;
(b) the Second Defendant's costs of the Plaintiff's claim against the Second Defendant; and
(c) the Third, Fourth, Fifth and Sixth Defendants' costs of the Plaintiff's claim against them.
3. The First Defendant pay the Second, Third, Fourth, Fifth and Sixth Defendants' costs of the First Defendant's cross-claim against them.
CA 2012/266987 (Plaintiff's Summons for Leave to Appeal on Costs)
1. Summons seeking leave to appeal dismissed.
2. No order as to costs.
3. Summons seeking leave to cross-appeal dismissed.
4. No order as to costs.
[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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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