Muller v Lalic

Case [2000] NSWCA 50
CITATION: Muller v Lalic [2000] NSWCA 50
FILE NUMBER(S): CA 40552/98
HEARING DATE(S): 18 and 22 February 2000
JUDGMENT DATE:
22 March 2000

PARTIES :
Garth Simon Muller (Appellant)
Nikola Lalic (Respondent)
JUDGMENT OF: Handley JA at 1; Powell JA at 2; Stein JA at 3
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC 1690/96
LOWER COURT
JUDICIAL OFFICER :		 Patten DCJ
COUNSEL: J D Hislop QC/ R I Goodridge (Appellant)
M Anstee (Respondent)
SOLICITORS: Firths The Compensation Lawyers (Appellant)
In Person (Respondent)
CATCHWORDS: NEGLIGENCE - whether storage of loaded rifle was unsafe - whether storage of loaded rifle was breach of duty of care - inherently dangerous chattel CAUSATION - whether son discharging rifle was novus actus interveniens - Firearms Act 1989 s 12. D
LEGISLATION CITED: Firearms Act 1989; s 12
CASES CITED:
 Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307
Burfitt v A and E Kille [1939] 2 QB 743
Chappel v Hart (1998) 195 CLR 232
Curmi v McLennan [1994] 1 VR 513
Dominion Natural Gas Co Ltd v Collins [1909] AC 640
Donoghue v Stevensen [1932] AC 562
Kavanagh v Akhtar (1998) 45 NSWLR 588
March v E & M H Stramare Pty Limited (1991) 171 CLR 506
Medlin v SGIC (1995) 182 CLR 1
Smith v Leurs (1945) 70 CLR 256
Sullivan v Gordon (1999) Aust Torts Reports 81 - 524
DECISION: 1. Appeal allowed with costs; 2. The respondent, Nikola Lalic, to have a certificate under the Suitors' Fund Act, if otherwise entitled; 3. The verdict in favour of Nikola Lalic set aside; 4. Verdict and judgment entered in favour of Appellant against Respondent Nikola Lalic in the sum of $201,589.07; 5. The order that the plaintiff pay defendant's costs of the trial set aside and order that defendant Nikola Lalic pay plaintiff's costs of the trial be substituted; 6. Orders of Patten DCJ not otherwise to be disturbed.



    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
                    CA 40552/98
                    DC 1690/96
                        HANDLEY JA
                            POWELL JA
                            STEIN JA
    Wednesday, 22 March 2000
    MULLER v LALIC

    The appellant was seriously injured when he was shot in the chest by Michael Lalic with a gun Michael had taken from a locked wardrobe in his father’s bedroom.

    Damages for negligence were sought in the District Court and a verdict against Michael Lalic was found. A verdict was found for the parents of Michael Lalic, Nikola and Darinka Lalic.

    At first instance

    The trial judge found that the fact that the gun was left with ammunition in its magazine did not warrant a conclusion of negligence by the respondent because the gun was kept in a secure location.

    The discharging of the gun was an intervening act by Michael Lalic for which the respondent should not be held responsible.

    Held (Stein JA, Handley and Powell JJA agreeing):

    1. The weapon was negligently stored.

    2. The weapon was stored in breach of s 12, Firearms Act 1989. Failure to comply…

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AGLC
Muller v Lalic [2000] NSWCA 50
Case
[2000] NSWCA 50
Decision Date

CaseChat Overview and Summary

The appellant, Muller, appealed to the New South Wales Court of Appeal against a decision of Patten DCJ in favour of the respondent, Nikola Lalic. The dispute concerned an action for negligence arising from the discharge of a loaded rifle.

The primary legal issues before the Court of Appeal were whether the storage of a loaded rifle constituted a breach of a duty of care, and whether the subsequent discharge of the rifle by the respondent's son amounted to a novus actus interveniens that broke the chain of causation. The court also considered the application of section 12 of the *Firearms Act 1989* (NSW).

The Court of Appeal found that the storage of a loaded rifle in the circumstances was inherently dangerous and constituted a breach of the duty of care owed by the respondent. The court determined that the actions of the respondent's son in discharging the rifle were not a novus actus interveniens, as they were a foreseeable consequence of the respondent's negligent storage of the firearm. The court allowed the appeal, setting aside the verdict in favour of the respondent and entering a verdict and judgment in favour of the appellant. The orders regarding costs were also substituted.

Orders

Orders of the court

1. Appeal allowed with costs; 2. The respondent, Nikola Lalic, to have a certificate under the Suitors' Fund Act, if otherwise entitled; 3. The verdict in favour of Nikola Lalic set aside; 4. Verdict and judgment entered in favour of Appellant against Respondent Nikola Lalic in the sum of $201,589.07; 5. The order that the plaintiff pay defendant's costs of the trial set aside and order that defendant Nikola Lalic pay plaintiff's costs of the trial be substituted; 6. Orders of Patten DCJ not otherwise to be disturbed.

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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