Sanchez-Sidiropoulos v Canavan

[2016] NSWCA 221

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Sanchez-Sidiropoulos v Canavan [2016] NSWCA 221

Hearing dates:

15 August 2016

Date of orders:

15 August 2016

Decision date:

24 August 2016

Before:

Beazley ACJ at [1];
Basten JA at [2];
Payne JA at [45]

Decision:

(1)   Refuse leave to file the second further amended notice of appeal.

 

(2)   Dismiss the appeal with costs.

 (3)   Order that the solicitor for the appellant, Mr J P Capsanis, personally pay the costs of preparation of the orange book in a sum not exceeding $500 including GST.

Catchwords:

APPEAL – leave to amend grounds of appeal out of time – whether prejudice to respondent – whether reasonable prospect of success based on proposed new ground – whether prejudice to appellant if not allowed to pursue proposed amended grounds

 

TORTS – negligence – personal injury – collision causing injury during physical education warm-up game – adequacy of instructions – game played on asphalt surface – age of players – manner in which game played

  TORTS – causation – risk of playing on asphalt surface – injury not materialisation of risk

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Category:

Principal judgment

Parties:

Jade Sanchez-Sidiropoulos (Appellant)
Brother Kelvin Canavan (Respondent)

Representation:

Counsel:
Mr A D Crossland (Appellant)
Mr A C Bridge / Mr C P O’Neill (Respondent)

  Solicitors:
J P Capsanis & Co (Appellant)
Makinson D’Apice Lawyers (Respondent)

File Number(s):

2015/260246

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 1139

Date of Decision:

14 August 2015

Before:

Schmidt J

File Number(s):

2009/297447

Judgment

1. BEAZLEY ACJ: I agree with Basten JA.

2. BASTEN JA: In June 2005 the appellant, Jade Sanchez-Sidiropoulos, then 10 years of age, was a student at St Joachim’s Primary School in Lidcombe. On 16 June 2005 she fell and injured her wrist whilst playing a game of tag, after colliding with another player. In April 2009 she commenced proceedings against the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, claiming damages in negligence.

3. By an amended statement of claim, filed on 17 April 2014, the Trustees were removed as the defendant and the matter went to trial with Brother Kelvin Canavan sued as the owner of the land and the person with care, control and management of the School. The case came on for trial before Schmidt J in the Common Law Division. It ran for four days in December 2014 and three days in March 2015. Schmidt J dismissed the claim. [1] The judge held that there was no breach of the duty of care owed by the School to the appellant. The judge nevertheless assessed the damages which would have been payable in the event that negligence had been established. She found that no damages compensable under the Civil Liability Act 2002 (NSW) had been established.

   1. Sanchez-Sidiropoulos v Canavan [2015] NSWSC 1139.

The appeal

4. The appellant’s lawyers have struggled to identify grounds of…