Woolworths Limited v Strong & Anor [2010] NSWCA 282
Campbell JA:
"66 The present is not, however, a case in which proof of breach of duty in itself makes likely that, had the duty been performed, the damage would not have been caused. That is because there is no evidence that would justify a conclusion that taking reasonable care, in the present case, required the continuous presence of someone always on the lookout for potential slippery substances. Periodical inspections and cleanings were all that reasonable care required. That gives rise to the possibility that, even if periodical inspections and cleaning had been carried out, with the minimum frequency required for the Appellant to be taking reasonable care, the chip fell between the last such inspection and the time the First Respondent encountered it. The present is not a case in which one can infer that if the steps involved in taking reasonable care had been taken, the plaintiff’s harm was more likely than not to have not arisen. In this case, the particular hazard that the First Respondent encountered was not one with an approximately equal likelihood of occurrence throughout the day. She slipped on a chip near a food court at lunch time, and the reasonableness of a cleaning system depends on the range of items it is foreseeable might be dropped rather than just on the particular hazard a particular plaintiff encountered. Because of those aspects of the facts, I am not prepared to draw that inference."
Saturday, November 13, 2010
Breach of duty: burden of proof on a plaintiff to prove that a reasonable response to a foreseeable risk of injury would have lessened the risk of injury
Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284
Sackville AJA:
"50 The critical issue on which the primary Judge found in the respondent’s favour was that a reasonable person in the position of the Council would have erected a continuous fence along the side of the pit as a precaution against injuries of the kind sustained by the respondent. In my opinion, his Honour erred in making that finding. The evidence did not permit him to conclude that the erection of such a barrier would lessen the risk of injury to customers using the tip, in particular those depositing rubbish at the pit. The burden of proof on this issue rested on the respondent. She adduced no evidence to demonstrate that the risks associated with constructing a fence or wall alongside the pit were less than the risks of a fall by reason of a customer coming into contact with the riser and falling into the Pit.
51 In the absence of evidence justifying a finding that the risks inherent in the erection of a fence or wall were less than those associated with the configuration of the pit, the primary Judge was incorrect to conclude that a reasonable person in the council’s position would have constructed a wall or fence along the side of the pit. On the evidence, that would simply have substituted for one risk another set of risks."
Sackville AJA:
"50 The critical issue on which the primary Judge found in the respondent’s favour was that a reasonable person in the position of the Council would have erected a continuous fence along the side of the pit as a precaution against injuries of the kind sustained by the respondent. In my opinion, his Honour erred in making that finding. The evidence did not permit him to conclude that the erection of such a barrier would lessen the risk of injury to customers using the tip, in particular those depositing rubbish at the pit. The burden of proof on this issue rested on the respondent. She adduced no evidence to demonstrate that the risks associated with constructing a fence or wall alongside the pit were less than the risks of a fall by reason of a customer coming into contact with the riser and falling into the Pit.
51 In the absence of evidence justifying a finding that the risks inherent in the erection of a fence or wall were less than those associated with the configuration of the pit, the primary Judge was incorrect to conclude that a reasonable person in the council’s position would have constructed a wall or fence along the side of the pit. On the evidence, that would simply have substituted for one risk another set of risks."
Calderbank offers: Court of Appeal confirms that reasonableness of rejecting a Calderbank offer is to be considered prospectively at the time the offer is made
Noon & Anor v Bondi Beach Astra Retirement Village Pty Ltd & Anor (No 2) [2010] NSWCA 285
Giles JA; Macfarlan JA; Young JA:
"11 The appellants’ submissions amounted to little more than that their ultimate success meant that it was unreasonable for the respondents not to have accepted the offer. That is incorrect reasoning. Reasonableness is not to be determined with hindsight; rather, the strength or otherwise of the appellants’ claim should be considered prospectively as at the time of the offer (for example, Gretton v Commonwealth of Australia [2007] NSWSC 149 at [24]). A claimant can reasonably seek to have a claim determined in court, although ultimately it fails, rather than accept an offer of much less than that which success would bring. The appellants’ submissions did not descend to why, viewed prospectively, the offered $200,000 should have been accepted."
Giles JA; Macfarlan JA; Young JA:
"11 The appellants’ submissions amounted to little more than that their ultimate success meant that it was unreasonable for the respondents not to have accepted the offer. That is incorrect reasoning. Reasonableness is not to be determined with hindsight; rather, the strength or otherwise of the appellants’ claim should be considered prospectively as at the time of the offer (for example, Gretton v Commonwealth of Australia [2007] NSWSC 149 at [24]). A claimant can reasonably seek to have a claim determined in court, although ultimately it fails, rather than accept an offer of much less than that which success would bring. The appellants’ submissions did not descend to why, viewed prospectively, the offered $200,000 should have been accepted."
Friday, November 12, 2010
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