Montague v Harris & Anor

[2000] NSWCA 327

NEW SOUTH WALES COURT OF APPEAL

CITATION:         MONTAGUE v HARRIS & ANOR [2000]  NSWCA 327

FILE NUMBER(S):
40260/99

HEARING DATE(S):          30 October 2000

JUDGMENT DATE:           30/10/2000

PARTIES:
SHARON NORA MONTAGUE v ROBERT CHARLES HARRIS & ANOR

JUDGMENT OF: Mason P Sheller JA Davies AJA   

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):               DC 3171/98

LOWER COURT JUDICIAL OFFICER:          Garling DCJ

COUNSEL:
Appellant: G T W Miller QC, R J de Meyrick
Respondents: D F Rofe QC, R W Seton

SOLICITORS:
Appellant: T D Kelly & Co
Respondents: Abbott Tout

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Dismissed with costs - short reasons

JUDGMENT:

SUPREME COURT OF
NEW SOUTH WALES
COURT OF APPEAL
  No CA 40260 of 1999

MASON P
  SHELLER JA
  DAVIES AJA

Form 62AA1

SHARON NORA MONTAGUE v
ROBERT CHARLES HARRIS & ANOR

SHORT REASONS FOR DECISION

The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to section 45(4) of the Supreme Court Act 1970, the Court’s reasons for decision in short form are:

We agree with the facts as found and the reasoning of the trial judge.

The trial judge recognised the respondents’ duty of care and the fact that there was “a chance that someone could have slipped and fallen”.  But he was not persuaded that the respondents’ response to the risk was unreasonable in light of the matters referred to at RB 67-8.  This is a straightforward application of Mason J’s calculus in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8.

This was a holiday house at Bermagui.  The accident occurred on a grass slope found to be 1:6 at its relevant point.   In light of the evidence about absence of prior accident and the acceptance of Dr Cook’s evidence by the trial judge, we are not persuaded that the conclusion in favour of the respondents was wrong in fact or law.

……………………………
Mason P

……………………………
Sheller JA

…………………………
Davies AJA

30 October 2000

LAST UPDATED:              05/12/2000