Schultz v McCormack

Case [2015] NSWCA 330

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Schultz v McCormack [2015] NSWCA 330
Hearing dates:28 July 2015
Date of orders: 23 October 2015
Decision date: 23 October 2015
Before: McColl JA at [1]; Macfarlan JA at [132], Beech-Jones J at [144]
Decision:

(1)   Appeal allowed.
(2)   Verdict and judgment for the respondents entered on 23 June 2014 set aside.
(3)   Judgment for the appellant in the sum of $750,000 to date from 23 June 2014.
(4)   Cross-appeal dismissed with costs.
(5) Respondents to pay the appellant’s costs in this court and in the court below and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.

Catchwords:

TORTS – negligence – duty of care – breach of duty – occupier’s liability – plaintiff slipped on wet tiled surface at night after rain – whether primary judge erred in characterising risk – whether primary judge erred in finding occupiers not negligent – whether primary judge erred in finding of contributory negligence

 

TORTS – negligence – duty of care – whether risk of harm that materialised an “obvious risk” within Civil Liability Act 2002 (NSW), s 5F(1) such that occupier did not owe plaintiff duty of care to warn of it

  TORTS – negligence – damages – whether primary judge erred in assessment of domestic assistance claim
Legislation Cited: Civil Liability Act 2002 (NSW)
District Court Act 1973 (NSW)
Suitors’ Fund Act 1951 (NSW)
Cases Cited: Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Cherry v Jaymardo Pty Ltd [1998] NSWCA 57
Coles Supermarkets Australia Pty Ltd v Haluka [2012] NSWCA 345
Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682
Collins v Clarence Valley Council [2015] NSWCA 263
Dell v Dalton (1991) 23 NSWLR 528
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482; (2013) 86 NSWLR 191
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep ¶81-952
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Paul v Cooke [2013] NSWCA 311; (2013) 85 NSWLR 167
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wilkinson v Law Courts Ltd
Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports ¶81-754
Category:Principal judgment
Parties: Sheran Ann Schultz…

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AGLC
Schultz v McCormack [2015] NSWCA 330
Case
[2015] NSWCA 330
Decision Date

CaseChat Overview and Summary

In *Schultz v McCormack*, the New South Wales Court of Appeal considered an appeal from a decision of the primary judge concerning a claim in negligence. The appellant, Ms Schultz, had slipped and fallen on a wet tiled surface at night after it had been raining, sustaining injuries. She alleged that the occupiers of the premises owed her a duty of care and had breached that duty. The primary judge had found the occupiers not negligent and had also made a finding of contributory negligence against Ms Schultz.

The Court of Appeal was required to determine whether the primary judge had erred in characterising the risk of harm, in finding that the occupiers were not negligent, and in their assessment of contributory negligence. A further issue was whether the risk of harm that materialised was an "obvious risk" within the meaning of section 5F(1) of the *Civil Liability Act 2002* (NSW), which would have meant the occupiers did not owe a duty to warn of it. The court also considered whether the primary judge had erred in the assessment of the domestic assistance claim.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in their assessment of the evidence and the application of the law. The court determined that the risk of slipping on a wet tiled surface at night after rain was not an obvious risk for the purposes of the *Civil Liability Act 2002* (NSW). Consequently, the occupiers owed a duty of care to Ms Schultz. The court found that this duty had been breached and that the primary judge's finding of no negligence was incorrect. The court also found that the primary judge had erred in their assessment of contributory negligence.

The Court of Appeal set aside the verdict and judgment for the respondents entered in the court below and entered judgment for the appellant, Ms Schultz, in the sum of $750,000. The cross-appeal by the respondents was dismissed. The respondents were ordered to pay the appellant’s costs in both the Court of Appeal and the court below, with a certificate under the *Suitors’ Fund Act 1951* (NSW) available if otherwise qualified.

Orders

Orders of the court

(1) Appeal allowed.

(2) Verdict and judgment for the respondents entered on 23 June 2014 set aside.

(3) Judgment for the appellant in the sum of $750,000 to date from 23 June 2014.

(4) Cross-appeal dismissed with costs.

(5) Respondents to pay the appellant’s costs in this court and in the court below and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.

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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