COUNSEL: J E Maconachie QC (Appellant) M J Cranitch SC; T J Willis (First Respondent) S J Walsh (Second Respondent)
SOLICITORS: Bartier Perry (Appellant) Leitch Hasson Dent (First Respondent) Thompson Cooper Lawyers Pty Ltd (Second Respondent)
CATCHWORDS: TORTS - negligence - damage - causation - whether causation established - sections 5D and E, Civil Liability Act 2002 - no basis on which a judge could conclude that taking of reasonable care involved any greater diligence than what was applied
DECISION: (1) Appeal allowed. (2) Set aside the judgment and all orders for costs in the court below. (3) In lieu thereof order that the proceedings be dismissed and that the First Respondent pay the costs of the Appellant and the Second Respondent in the court below. (4) Appellant to pay Second Respondent’s costs of the appeal, limited to the costs that would have been incurred in filing an appearance submitting to any order the court might make save an order requiring it to pay costs to any party. (5) First Respondent to pay the costs of the Appellant of the appeal including the costs the Appellant is ordered to pay to the Second Respondent, but to have a certificate under the Suitors’ Fund Act 1951 if entitled. (6) Order the First Respondent to pay to the Appellant any amount she has received in payment or partial payment of the judgment in the court below, together with interest at the rate prescribed pursuant to section 101 Civil Procedure Act 2005 from the date the First Respondent received that sum to the date she repays it.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Woolworths Limited v Strong [2010] NSWCA 282
Case
[2010] NSWCA 282
Decision Date
CaseChat Overview and Summary
Woolworths Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a judgment of the Supreme Court of New South Wales which found it liable in negligence to the first respondent, Ms Strong. The dispute concerned whether Woolworths had breached its duty of care to Ms Strong and, if so, whether that breach caused her injuries. The second respondent, the Nominal Defendant, was also involved in the proceedings.
The primary legal issues before the Court of Appeal were whether the trial judge erred in finding that Woolworths had breached its duty of care to Ms Strong and, crucially, whether the trial judge had correctly applied the principles of causation under sections 5D and 5E of the *Civil Liability Act 2002* (NSW). Specifically, the court considered whether there was any evidential basis upon which the judge could conclude that the taking of reasonable care by Woolworths would have involved any greater diligence than that which was actually applied.
The Court of Appeal found that the trial judge had erred in her findings. The court reasoned that there was no basis for concluding that any failure by Woolworths to exercise reasonable care had caused Ms Strong's injuries. The court held that the evidence did not establish that a different course of action by Woolworths would have prevented the harm suffered by Ms Strong. Consequently, the appeal was allowed, the judgment in favour of Ms Strong was set aside, and the proceedings were dismissed. Woolworths was ordered to pay the costs of Ms Strong and the Nominal Defendant in the court below, while Ms Strong was ordered to pay the costs of the Nominal Defendant in the appeal, with Woolworths bearing the costs of Ms Strong in the appeal, including those she paid to the Nominal Defendant. Ms Strong was also ordered to repay any judgment amount received from Woolworths.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the judgment and all orders for costs in the court below.
(3) In lieu thereof order that the proceedings be dismissed and that the First Respondent pay the costs of the Appellant and the Second Respondent in the court below.
(4) Appellant to pay Second Respondent’s costs of the appeal, limited to the costs that would have been incurred in filing an appearance submitting to any order the court might make save an order requiring it to pay costs to any party.
(5) First Respondent to pay the costs of the Appellant of the appeal including the costs the Appellant is ordered to pay to the Second Respondent, but to have a certificate under the Suitors’ Fund Act 1951 if entitled.
(6) Order the First Respondent to pay to the Appellant any amount she has received in payment or partial payment of the judgment in the court below, together with interest at the rate prescribed pursuant to section 101 Civil Procedure Act 2005 from the date the First Respondent received that sum to the date she repays it.