Coote v Forestry Tasmania [2006] HCA 26

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

GRAHAM COOTE APPELLANT

AND

FORESTRY TASMANIA RESPONDENT

Coote v Forestry Tasmania

[2006] HCA 26

13 June 2006

H3/2005

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Supreme Court of Tasmania made on 23 March 2005.

3. Remit the matter to the Full Court of the Supreme Court of Tasmania for determination of the issues raised by pars 7 and 8 of the Notice of Appeal to that Court dated 28 July 2004.

4. The costs of the trial of the action and of the appeal to the Full Court of the Supreme Court of Tasmania should be in the discretion of the Full Court.

On appeal from the Supreme Court of Tasmania

Representation

J Ruskin QC with S A O'Meara for the appellant (instructed by Hilliard and Associates)

D E Curtain QC with C M O'Neill for the respondent (instructed by Phillips Fox)

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

CATCHWORDS

Coote v Forestry Tasmania

Negligence – Breach of duty – Appellant tree feller rendered paraplegic after a branch fell from a tree and hit him – Respondent, by its forestry officer, gave the appellant a direction that he was not to fell pulp trees as he normally would – Whether respondent was negligent in giving that direction and so causing appellant to place himself in a position of danger.

Appeal – Approach to issues of negligence and contributory negligence – Trial judge finds that respondent, by its forestry officer, gave the appellant tree feller a direction that he was not to fell pulp trees as he normally would – Centrality of finding to conclusion of negligence – Full Court does not disturb that finding but finds no negligence – Whether finding of no negligence open to Full Court in the circumstances – Whether any error of judgment of the appellant a matter relevant to contributory negligence.