WATERS v WINTER and ANOR [1998] NSWCA 254

WATERS v WINTER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and STEIN JJA

28 May 1998, 9 June 1998

[1998] NSWCA 254

DAMAGES — assault — whether sufficient evidence of identity of assailant

NEGLIGENCE — duty of care — reasonable foreseeability — lack of evidence to assess extent of duty

WATERS v WINTER and THE UNIVERSITY OF NEW ENGLAND

On 20 November 1986, Mr Waters was seriously injured in an incident on the campus of the University of New England. Mr Waters sued Mr Winter for damages for assault and the University for negligence.

While stating that there was no direct evidence of the person who had assaulted Mr Waters the trial judge was satisfied on a balance of probabilities that Mr Winter was liable. Mr Waters failed, however, against the University. He was awarded damages at $94,586 plus interest.

Two appeals arose from the judgment:

(1) Mr Waters appealed the finding that the University was not liable (40105/96).

(2) Mr Winter appealed the finding of liability against himself (40099196).

Held:

(1) There was no duty on the part of the University to provide professional security guards. It was not reasonably foreseeable that a failure to do so would be likely to lead to harm to Mr Waters or any other student in his position.

(2) That the finding of liability against Mr winter was open on the evidence and no error law was demonstrated.

Sheller JA I agree with Stein JA. Powell JA I agree with Stein JA.

Stein JA These are two appeals arising out of an incident on the campus of the University of New England on 20 February 1986. In this incident Clinton Stanley Waters, the plaintiff in District Court proceedings, suffered serious personal injury. The plaintiff sued Jason Winter for damages for assault and the University of New England for negligence. Before Sinclair DCJ, he was successful against Mr Winter but failed against the University. His Honour assessed damages at $94,586 plus interest.