JOHNSON v JOHNSON [1991] NSWCA 159

JOHNSON v JOHNSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P MAHONEY and CLARKE JJA 24 July 1991, 10 September 1991 [1991] NSWCA 159

NEGLIGENCE — occupier's liability — brother visits family trips and falls against balcony railing 5 metres above ground level — resulting injuries cause paraplegia — trial judge (Carruthers J) finds that the injury was reasonably foreseeable, constituted a breach of the occupier's duty of care and that the injuries were caused by such breach — on appeal — held: (1) The duty owed is that of reasonable care having regard to all the circumstances of the case. Wyong Shire Council v Shirt (1980) 146 CLR 40; Papatonakis v Australian Telecommunications Commission and Anor (1985) 156 CLR 7; Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Phillis v Daly (1988) 15 NSWLR 65; Sleiman v Franklin Food Stores Pty Ltd [1989] Aust Torts Reports $80-266 applied; (2) In the circumstances, having regard to the widespread evidence of dry rot in the staircase, its instability, its dangerous elevation and the serious risk of injury if a visitor fell, it was open to the trial judge to conclude that the occupiers had failed to take reasonable care to ensure the safety of their premises; (3) Having regard to the circumstances of the fall against the balcony railing, it was also open to the trial judge to conclude that the failure of the railing to withstand the force of the fall was the cause of the plaintiff's injuries.

NEGLIGENCE — insurance — effect of compulsory and widespread voluntary insurance on the common law standard of reasonable care — discussion by Kirby P of the impact of insurance on negligence law and on the imposition of duties of accident prevention. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 and Sleiman v Franklin Food Stores Pty Ltd (1989) Aust Torts Rep #80-266 considered.