Gause v Alderson [2024] NSWCA 312

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gause v Alderson [2024] NSWCA 312 Hearing dates: 29 November 2024 Date of orders: 20 December 2024 Decision date: 20 December 2024 Before: Mitchelmore JA at [1]; Stern JA at [2]; Price AJA at [114]. Decision: (1) Appeal dismissed. (2) Cross-appeal allowed. (3) The appellant to pay the respondents' costs of the appeal and cross-appeal. (4) The parties are to take reasonable steps to agree short minutes of order as to what further orders should be made to reflect the respondents' success on the cross-appeal which should be filed by 5 February 2025. Failing agreement: (a) The respondents to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 7 February 2025; and (b) The appellant to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 12 February 2025. Catchwords: NEGLIGENCE - breach – discrete or hidden risk – where risk of a non-operational smoke alarm was foreseeable and highly significant – where precautions were not onerous NEGLIGENCE – intoxication – where relevant conduct or activity was being asleep in home – whether there was impairment of capacity to exercise reasonable care and skill due to intoxication APPEALS - from finding of fact - credibility of witnesses – where primary judge observed the appellant giving evidence - primary judge entitled to make adverse credibility findings Legislation Cited: Civil Liability Act 2002 (NSW), s 50 Compensation to Relatives Act 1897 (NSW) Evidence Act 1995 (NSW), s 140(2) Interpretation Act 1987 (NSW), s 8(b) Cases Cited: Alderson v Gause [2024] NSWDC 152 Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 57 Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 Payne trading as Sussex Inlet Pontoons v Liccardy [2023] NSWCA 73 Roads and Traffic Authority v Royal [2008] HCA 19 Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Scott v Scott [2022] NSWCA 182 Category: Principal judgment Parties: James Gause (Appellant / Cross-Respondent) Tamara Alderson (First Respondent / First Cross-Appellant) Narelle Heafey (Second Respondent / Second Cross-Appellant) John Heafey (Third Respondent / Third Cross-Appellant) Elijah Heafey BHT Tamara Alderson (Fourth Respondent / Fourth Cross-Appellant) Kruz Heafey BHT Tamara Alderson (Fifth Respondent / Fifth Cross-Appellant) Tamara Alderson (Compensation to Relatives) (Sixth Respondent / Sixth Cross-Appellant) Representation: Counsel: J Turnbull SC and M Hamdan (Appellant / Cross-Respondent) R Sheldon SC and E Anderson (Respondents / Cross-Appellants)