Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Shoalhaven City Council v Pender [2013] NSWCA 210 Hearing dates: 28 March 2013 Decision date: 10 July 2013 Before: McColl JA [1]
Barrett JA [98]
Ward JA [99]Decision: 1. Appeal allowed.
2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside.
3. In lieu thereof order that there be verdict in favour of the appellant.
4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court.
[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 - occupier's liability - slip and fall on ferry ramp - whether conclusion as to how plaintiff fell available either from direct evidence or by inference - whether circumstances raised a more probable inference in favour of plaintiff's case
TORTS - negligence - Civil Liability Act 2002, s 5B and s 5C - breach of duty of care - identification of risk of harm - whether risk of slipping on dry concrete surface of boat ramp "not insignificant" - whether evidence of unreasonable failure to take precautions against risk of harm
TORTS - negligence - Civil Liability Act 2002, s 5D - causation - necessary condition of harm - whether absence of adequate cleaning system cause of injury
TORTS - contributory negligence
DAMAGES - apportionment of responsibility as between employer and occupier for purposes of s 151Z(2)(c) Workers Compensation Act 1987 - assessment of damages for future economic loss and future paid domestic assistanceLegislation Cited: Civil Liability Act 2002
Civil Liability Act 2003 (Qld)
Workers Compensation Act 1987Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452
Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Dulhunty v J B Young Ltd (1975) 50 ALJR 150
Flounders v Millar [2007] NSWCA 238
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367
Hoffmann v Boland [2013] NSWCA 158
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- Case
- [2013] NSWCA 210
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the trial judge erred in finding that the risk of slipping on the dry concrete surface of the boat ramp was "not insignificant" under section 5B of the *Civil Liability Act 2002* (NSW). It also had to consider whether the circumstances raised a more probable inference that the respondent's fall was caused by the appellant's negligence, or whether the absence of an adequate cleaning system constituted a necessary condition of the respondent's harm under section 5D of the *Civil Liability Act 2002* (NSW). The court also considered issues of contributory negligence and the apportionment of responsibility for damages.
The Court of Appeal found that the trial judge had erred in concluding that the appellant was negligent. The court reasoned that there was no direct evidence as to how the respondent fell, and the circumstances did not give rise to a more probable inference that the fall was due to the appellant's negligence. The court held that the risk of slipping on a dry concrete surface was not "not insignificant" in the context of the *Civil Liability Act 2002* (NSW), and that the respondent had failed to establish that the absence of a cleaning system was a causative factor in his fall.
Consequently, the Court of Appeal allowed the appeal, setting aside the verdict and judgment of the District Court. The court entered a verdict in favour of the appellant and ordered that the respondent pay the appellant's costs of both the appeal and the proceedings in the District Court.
Orders
Orders of the court
1. Appeal allowed.
2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside.
3. In lieu thereof order that there be verdict in favour of the appellant.
4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court.
[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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