Schultz v McCormack

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.