Court of Appeal
New South Wales
Case Title: REED v WARBURTON Medium Neutral Citation: [2011] NSWCA 98 Hearing Date(s): 7 April 2011 Decision Date: 20 April 2011 Jurisdiction: Before: Hodgson JA at 1;
Basten JA at 2;
Handley AJA at 52Decision: (1) Allow the appeal and set aside the orders made by the District Court on 9 February 2010.
(2) In place of those orders, give judgment for the appellant in an amount of $105,000, together with pre-judgment interest, the judgment to take effect from 9 February 2010.
(3) Direct each party to:
(a) file written submissions (and any evidence on which he or they may seek to rely) in respect of the costs of the trial and the appeal within 14 days of delivery of this judgment;
(b) file submissions in reply (if any) within 21 days of delivery of this judgment.
(4) Grant the respondents a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.
[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 - breach of duty of care - foreseeable risk - whether failure to take reasonable care broader than failure to take precautions - Civil Liability Act 2002 (NSW), s 5B(1).
TORTS - negligence - breach of duty of care - use of oxyacetylene torch near wall made of straw bales - ignition of hand-packed straw - defendant knew of gap in wall-lining, but did not know what was in the wall - Civil Liability Act 2002 (NSW), s 5B(2).
TORTS - negligence - contributory negligence - whether failure of the plaintiff to inform the defendant about hand-packed straw constituted contributory negligence - Civil Liability Act 2002 (NSW), s 5R(1).
WORDS AND PHRASES - "failing to take precautions".
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5R
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40Texts Cited: Category: Principal judgment Parties: Ian William Reed (Appellant)
Bruce T Warburton (First Respondent)
Trudy A Warburton (Second Respondent)Representation - Counsel: S G Campbell SC/S J Walsh (Appellant)
A J Black SC (Respondents)- Solicitors: Turks Legal (Appellant)
McCabe Terrill (Respondents)File number(s): 2010/60225 Decision Under Appeal - Court / Tribunal: District Court - Before: Hosking DCJ - Date of Decision: 09 February 2010 - Citation: - Court File Number(s) 41/2008 Publication Restriction:
Judgment
HODGSON JA : I agree with Basten JA.
BASTEN JA : The appellant, Mr Ian Reed, was the owner of a block of land near Orange in central New South Wales,…
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- AGLC
- Reed v Warburton [2011] NSWCA 98
- Case
- [2011] NSWCA 98
- Decision Date
CaseChat Overview and Summary
The Court was required to determine two primary legal issues. Firstly, whether Warburton breached his duty of care to Reed, specifically in relation to the use of the oxyacetylene torch near the straw bale wall, and whether this breach was a result of failing to take reasonable care, as contemplated by section 5B(1) of the *Civil Liability Act 2002* (NSW). Secondly, the Court had to consider whether Reed's failure to inform Warburton about the presence of hand-packed straw within the wall constituted contributory negligence under section 5R(1) of the *Civil Liability Act 2002* (NSW).
The Court found that Warburton had breached his duty of care. Despite knowing there was a gap in the wall's lining, Warburton did not know what was contained within the wall, yet proceeded to use a highly flammable tool in close proximity. The Court reasoned that the risk of ignition was foreseeable, and a reasonable person in Warburton's position would have taken precautions, such as inquiring about the wall's composition or ceasing work until its contents were known. The Court also found that Reed was not contributorily negligent, as there was no evidence that he knew Warburton was using the torch in a dangerous manner or that he failed to take reasonable care for his own safety.
Consequently, the Court of Appeal allowed Reed's appeal, setting aside the District Court's orders and entering judgment for Reed in the amount of $105,000, plus pre-judgment interest. The Court also directed the parties to file submissions regarding the costs of the trial and the appeal, and granted Reed a certificate under the *Suitors' Fund Act 1951* (NSW) in respect of the costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside the orders made by the District Court on 9 February 2010.
(2) In place of those orders, give judgment for the appellant in an amount of $105,000, together with pre-judgment interest, the judgment to take effect from 9 February 2010.
(3) Direct each party to:
(a) file written submissions (and any evidence on which he or they may seek to rely) in respect of the costs of the trial and the appeal within 14 days of delivery of this judgment;
(b) file submissions in reply (if any) within 21 days of delivery of this judgment.
(4) Grant the respondents a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.
[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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