Swift v Wearing-Smith

[2016] NSWCA 38

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Swift v Wearing-Smith [2016] NSWCA 38
Hearing dates:	20 July 2015
Date of orders:	10 March 2016
Decision date:	10 March 2016
Before:	Meagher JA at [1] Hoeben JA at [13] Simpson JA at [147]
Decision:	(1) The appeal is allowed. (2) The verdict and judgment in favour of the respondent on 9 October 2014 is set aside. (3) In lieu thereof, there be verdict and judgment in favour of the appellants. (4) The order for costs of the trial in favour of the respondent is set aside. (5) In lieu thereof, the respondent is ordered to pay the appellants’ costs of the trial. (6) The respondent is to pay the appellants’ costs of the appeal.
Catchwords:	TORT – negligence – guest falling from first floor verandah as a result of balustrade giving way – proceedings brought against owners of premises – content of duty of care – building inspection report obtained before purchase of property – extent to which owners were on notice of defect in balustrade before accident – extent to which owners should have been on notice of defect – whether response by owners reasonable – breach of duty and causation – appeal by owners allowed.
Legislation Cited:	Civil Liability Act 2002 (NSW) – s 5B, s 5D(1)(a)
Cases Cited:	Ahluwalia and Ors v Robinson [2003] NSWCA 175 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hatziandoniou v Ruddy [2015] NSWCA 234 Jones v Bartlett [2000] HCA 56; 205 CLR 166 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431 Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wearing-Smith v Swift [2014] NSWDC 159
Category:	Principal judgment
Parties:	Anthony John Swift – First Appellant Kim Louise Swift – Second Appellant Peter Wearing-Smith - Respondent
Representation:	Counsel: Mr JM Morris SC/Ms R Bianchi – First and Second Appellants Mr M Cranitch SC/Mr T Meakes - Respondent   Solicitors: Moray & Agnew – First and Second Appellants Bryan Gorman & Co - Respondent
File Number(s):	2014/315541
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: Wearing-Smith v Swift [2014] NSWDC 159 Date of Decision: 9 October 2014 Before: Levy SC DCJ File Number(s): 2013/121518

Judgment

1. MEAGHER JA: I agree with Hoeben JA that this appeal should be allowed. For the following reasons and those given by his Honour, I consider the primary judge erred in his findings as to breach and as to the mechanism of failure of the balustrade. What follows assumes a familiarity with the factual background and evidence at trial as summarised by Hoeben JA.

2. The primary judge held that in the circumstances which followed their receipt of the…