Molly Erica Hoffmann Boland BY Her Tutor Jason Mark Boland v Hannelore Hoffman

[2013] HCASL 210

MOLLY ERICA HOFFMANN BOLAND BY HER TUTOR JASON MARK BOLAND

v

HANNELORE HOFFMAN & ORS

[2013] HCASL 210
S131/2013

1. The first respondent is the applicant's grandmother.  On 25 January 2006, while carrying the applicant, the first respondent fell down some stairs in a house owned by the applicant's great uncle.  The applicant suffered severe, and apparently permanent, brain damage as a result of the fall.  At the time the applicant was just under six months old.

2. The applicant commenced proceedings against the first respondent for negligence (the second to sixth respondents were subsequently joined as defendants).  On 29 May 2012, the Supreme Court of New South Wales (RS Hulme J) held, inter alia, that the first respondent had breached her duty of care to the applicant.

3. On 6 June 2013, the Court of Appeal of the Supreme Court of New South Wales allowed the first respondent's appeal against the decision of RS Hulme J. Sackville AJA (with whom Basten and Barrett JJA agreed) held that the first respondent did not breach her duty of care. His Honour observed that the primary judge did not consider "the social utility of the activity that created the risk of harm", as is required by s 5B(2)(d) of the Civil Liability Act 2002 (NSW) ("the Act"). The question of social utility was important in this case because the first respondent was rendering assistance in a domestic setting to her daughter and grand-daughter. Sackville AJA also concluded that an attempt to attribute a want of reasonable care to the first respondent merely "reflect[ed] a search for measures that, in retrospect, might have avoided the ... accident that occurred."

4. The applicant submits that the Court of Appeal erred by effectively concluding that s 5B(2)(d) of the Act excused the first respondent from taking the elementary precautions required for walking down stairs while holding a baby. The questions of breach of duty which arise in this case are essentially questions of fact. Further, contrary to the applicant's contentions, the Court of Appeal did not treat the issue of the social utility as determinative. Any appeal would not enjoy sufficient prospects of success to warrant the grant of special leave.

5. Despite the tragic circumstances of this case, special leave must be refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
13 December 2013 P.A. Keane