Sibraa v Brown

Case [2012] NSWCA 328

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Sibraa v Brown [2012] NSWCA 328
Hearing dates:17 September 2012
Decision date: 12 October 2012
Before: Campbell JA at [1]
Hoeben JA at [77]
Tobias AJA at [78]
Decision:

(1) Appeal allowed.

(2) Set aside the verdict for the Respondent in the court below.

(3) In lieu thereof, order that the proceedings below be dismissed with costs.

(4) Respondent to pay the costs of the Appellant of the appeal.

(5) Respondent to have a certificate under the Suitors Fund Act 1951.

[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 - occupier's liability - negligence - where plaintiff tripped in the darkness on a piece of wire mesh situated on the front lawn of defendant - whether risk of injury foreseeable - whether duty of care breached - usual case that lawns have upon them various objects and obstacles - ordinary homeowner would not be expected to remove or illuminate all potential obstacles to free progress on his or her lawn - s 5B(1)(c) Civil Liability Act not satisfied - defendant not negligent
Legislation Cited: Civil Liability Act 2002
Suitors Fund Act 1951
Wrongs Act 1936 (SA)
Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Halliday v Neville (1984) 155 CLR 1
Jaenke v Hinton [1995] QCA 484; Aust Torts Reports ¶81-368
Laresu Pty Ltd v Clark [2010] NSWCA 180
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631
Phillis v Daly (1988) 15 NSWLR 65
Shaw v Thomas [2010] NSWCA 169
Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reports ¶81-818
Woolworths Limited v Strong [2010] NSWCA 282
Category:Principal judgment
Parties: Noel Sibraa (Appellant)
Dorothy Brown (Respondent)
Representation: Counsel:
J Sexton SC; D Priestley (Appellant)
I D Roberts SC; K Oldfield (Respondent)
Solicitors:
Riley, Gray-Spencer Lawyers (Appellant)
Riordan Legal Pty Ltd (Respondent)
File Number(s):2011/330143
 Decision under appeal 
Date of Decision:
2011-06-08 00:00:00
Before:
Neilson DCJ
File Number(s):
2010/11608

Judgment

  1. CAMPBELL JA:

Nature of the Case

  1. The Appellant and the Respondent were next-door neighbours. The Respondent injured herself on 8 May 2007 when, in the dark and barefooted, she tripped over some welded wire mesh that was lying on the front lawn of the Appellant's house. Following a trial in the District Court at Albury, his Honour Judge Neilson held that the Respondent's injuries arose from the negligence of the Appellant. He awarded damages.

  1. The Appellant appeals against the finding of negligence. Appeals against two elements of the judge's assessment of quantum, and…

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AGLC
Sibraa v Brown [2012] NSWCA 328
Case
[2012] NSWCA 328
Decision Date

CaseChat Overview and Summary

Sibraa v Brown concerned an appeal to the Court of Appeal of New South Wales regarding a claim for damages for negligence. The plaintiff, Mr Sibraa, had tripped and fallen on a piece of wire mesh located on the front lawn of the defendant, Ms Brown. Mr Sibraa alleged that Ms Brown, as the occupier of the premises, owed him a duty of care and had breached that duty by failing to ensure the lawn was free from hazards.

The central legal issues before the Court of Appeal were whether the risk of injury to Mr Sibraa was reasonably foreseeable, whether Ms Brown had breached her duty of care to Mr Sibraa, and consequently, whether Ms Brown was negligent. The court was required to consider the standard of care expected of an ordinary homeowner in maintaining their front lawn and whether the presence of the wire mesh constituted a breach of that standard.

The Court of Appeal found that it was a usual occurrence for lawns to have various objects and obstacles upon them, and an ordinary homeowner would not be expected to remove or illuminate all potential impediments to free progress across their lawn. Applying the principles of the Civil Liability Act 2002 (NSW), the court determined that the risk of injury from the wire mesh was not one that an ordinary homeowner would have foreseen. Therefore, the requirements of section 5B(1)(c) of the Act were not satisfied, and Ms Brown was not found to be negligent.

Consequently, the Court of Appeal allowed the appeal, set aside the verdict entered for Mr Sibraa in the court below, and ordered that the proceedings be dismissed with costs. Mr Sibraa was also ordered to pay the costs of Ms Brown for the appeal and was granted a certificate under the Suitors Fund Act 1951.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the verdict for the Respondent in the court below.

(3) In lieu thereof, order that the proceedings below be dismissed with costs.

(4) Respondent to pay the costs of the Appellant of the appeal.

(5) Respondent to have a certificate under the Suitors Fund Act 1951.

[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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