STATE OF NEW SOUTH WALES v DALY and ANOR [1997] NSWCA 294

STATE OF NEW SOUTH WALES v DALY and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL JA and SHEPPARD AJA 5 August 1997, 3 September 1997

[1997] NSWCA 294

Negligence — personal injury — occupier's liability — injury from splinter detaching from timber floor — whether trial judge's finding that risk not reasonably foreseeable negates finding of verdict against appellant

Plaintiff injured by detachment of splinter whilst sliding along timber floor at disco organised by second respondent - disco conducted in public school hall owned by appellant - trial judge found verdict in favour of plaintiff against each of the defendants and apportioned one quarter to the state and three quarters to the club.

On appeal, appellant argued that trial judge's finding had effectively negated negligence on the part of the state - new issue raised by second respondent by notice of contention as to the cause of detachment of the splinter that injured the plaintiff - whether defect in floorboards reasonably detectable - whether condition of floorboards brought to attention of appellant.

Held, appeal allowed:

The duty owed by the appellant was one of reasonable care and the trial judge's finding that the risk (ie, lifting of the floorboards due to fungal decay) was not reasonably foreseeable negated a finding of negligence against the appellant.

Mason P Allan Daly, the first respondent ("the plaintiff') was injured by a wooden splinter as he slid along the floor of the assembly hall at La Perouse Primary School. He was attending a disco organised and conducted by the second respondent, the Matraville Tigers Junior Rugby League Club ("the Club"). The school premises were owned and occupied by the appellant ("the State"). The Club had paid a hiring fee of $20 to the School.

The floor in the assembly hall, which was occasionally used as a gymnasium, had been built about 20 years earlier. The floorboards were polished blackbutt (eucalyptus pilularis) cut in lengths that were 2.75m long and 57mm wide. The boards were tongued and grooved and nailed using a hidden nailed technique.