WHITE and ANOR v NITIS (NEE WILLIAMS) [1998] NSWCA 262

WHITE v NITIS (NEE WILLIAMS)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY JJA and SHEPPARD AJA 22 June 1998, 17 July 1998 [1998] NSWCA 262

Negligence — Duty of care — Breach of duty — Foreseeability of risk of injury — Likelihood of harm occurring — Whether steps to eliminate risk called for.

Powell JA This is an appeal from a Judgment delivered, and verdict found, by Coleman DCJ in the District Court on 29 March 1996 in proceedings which had been brought by the Respondent seeking to recover damages for injuries which she claimed to have sustained as long ago as 31 August 1983 when she fell from a tree whilst playing in the backyard of premises at Wyalong Street, Panania, which premises were - as they seem at the date of the hearing before his Honour still to have been - owned and occupied by the Appellants, Mr and Mrs White. In those proceedings Coleman DCJ, having found that the Appellants were liable to the Respondent, and that the damages to which and the interest thereon to which the Respondent would otherwise have been entitled amounted to $77,286.80, reduced that sum by 50% for the Respondent's contributory negligence and therefore found a verdict in favour of the Respondent in the sum of $38,643.40 and directed the entry of Judgment accordingly.

Although, in the Amended Statement of Claim (AB 1-5) which was filed on behalf of the Respondent, the particulars of negligence charged against the Appellants were far more extensive, the case which was sought to be made at trial on behalf of the Respondent was one based upon what might compendiously be described as "occupier's liability". That this was so is revealed by counsel's opening which was in the following terms (AB 21):

"This is a case where it is alleged that the occupier was liable for some injuries suffered by the plaintiff. I shall shortly tell you about it. It concerns the plaintiff, who was a school girl at the time, and the defendant's daughter who lived on the premises and the plaintiff during their game, playing games, climb (sic) a tree and fell out of the tree.