Neindorf v Junkovic [2005] HCA 75

HIGH COURT OF AUSTRALIA

GLEESON CJ,

KIRBY, HAYNE, CALLINAN AND HEYDON JJ

SANDRA NEINDORF APPELLANT

AND

MARTA JUNKOVIC RESPONDENT

Neindorf v Junkovic

[2005] HCA 75

8 December 2005

A36/2005

ORDER

1. Appeal allowed.

2. Set aside pars 1, 2 and 3 of the orders of the Full Court of the Supreme Court of South Australia made on 15 October 2004 and, in their place, order that the appeal to that Court be dismissed.

3. Appellant to pay the respondent's costs in this Court.

On appeal from the Supreme Court of South Australia

Representation:

R J Whitington QC with K G Nicholson for the appellant (instructed by Thomson Playford Lawyers)

S Walsh QC with A Rossi for the respondent (instructed by Moody Rossi & Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Neindorf v Junkovic

Negligence – Occupiers' liability – Breach of duty of care – Appellant invited the public to attend a garage sale – Garage sale conducted on the driveway of her residence – Driveway surface was uneven – Respondent entered premises and tripped on driveway – Whether risk posed by the uneven surface of the driveway was obvious and relatively minor and whether such considerations justified conclusion that there was no breach of duty of care.

Negligence – Occupiers' liability – Whether appellant owed a duty of care to the respondent – Scope of duty – Relationship between the duty of care and other elements of the tort of negligence – Relevance of obviousness of the risk.

Negligence – Occupiers' liability – Standard of care – Whether appellant breached duty of care – Nature and extent of the premises – Nature and extent of the danger – Significance of economic relationship between the parties –Significance of the respondent's age – Significance of the appellant's knowledge of the danger – Absence of any precautionary measures – Reasonableness of taking precautionary measures – Relevance of obviousness of the risk – Relevance of inattention by the respondent – Relevance of the application to the evidence of the Wrongs Act 1936 (SA).