THE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL [1992] NSWCA 192

THE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and HANDLEY JJA 28 November 1991, 28 February 1992 [1992] NSWCA 192

NEGLIGENCE — Omissions — Causation — But for test — Liability of local council for injury to person diving into a bay from a fence around a council pool — no pictogram warning sign — no finding by trial judge that but for the absence of the warning sign the plaintiff would not have dived.

NEGLIGENCE — Contributory Negligence — trial judge's finding of contributory negligence — eighty-five percent — trial judge's finding that plaintiff was substantially the author of his own misfortune reflects back on causation issue — finding of eighty-five percent contributory negligence inconsistent with conclusion concerning causation — trial judge must have applied the wrong test of causation.

NEGLIGENCE — Causation — Liability of local council for injury to a person diving into a bay from a fence around a council pool — plaintiff's claim based on absence of pictogram warning sign — trial judge finds council negligent and awards verdict for plaintiff but assesses contributory negligence at eighty-five percent on basis that plaintiff was substantially the author of his own misfortune — plaintiff appeals and defendant cross-appeals — no finding that but for the absence of the warning sign the plaintiff would not have dived — both parties agree on hearing of appeal and cross-appeal that "but form test was, in the circumstances, the test to apply — HELD — the trial judge must have applied the wrong test and, applying the correct test, the plaintiff had not established causation and the defendant should have succeeded.

Considered Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Stapley v Gypsum Mines Ltd [1953] AC 663 at 681 Hotson v East Berkshire Area Health Authority [1987] AC 750 Wilshire v Essex Area Health Authority [1988] 1 AC 1074 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Parramatta City Council v Lutz (1988) 12 NSWLR 293 March v E and MH Stamare Pty Ltd (1991) 65 ALJR 334