MONTAGUE v HARRIS & ANOR [2000] NSWCA 327

New South Wales Court of Appeal

CITATION : MONTAGUE v HARRIS & ANOR [2000] NSWCA 327 FILE NUMBER(S) : CA 40260/99 HEARING DATE(S) : 30 October 2000 JUDGMENT DATE : 30 October 2000

PARTIES : SHARON NORA MONTAGUE v ROBERT CHARLES HARRIS & ANOR JUDGMENT OF : Mason P at 1; Sheller JA at 1; Davies AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT DC 3171/98 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: G T W Miller QC, R J de Meyrick Respondents: D F Rofe QC, R W Seton SOLICITORS : Appellant: T D Kelly & Co Respondents: Abbott Tout

DECISION : Dismissed with costs - short reasons

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL No CA 40260 of 1999

MASON P SHELLER JA DAVIES AJA Form 62AA1 SHARON NORA MONTAGUE v ROBERT CHARLES HARRIS & ANOR SHORT REASONS FOR DECISION

The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to section 45(4) of the Supreme Court Act 1970, the Court's reasons for decision in short form are: We agree with the facts as found and the reasoning of the trial judge.

The trial judge recognised the respondents' duty of care and the fact that there was "a chance that someone could have slipped and fallen" . But he was not persuaded that the respondents' response to the risk was unreasonable in light of the matters referred to at RB 67-8. This is a straightforward application of Mason J's calculus in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8.

This was a holiday house at Bermagui. The accident occurred on a grass slope found to be 1:6 at its relevant point. In light of the evidence about absence of prior accident and the acceptance of Dr Cook's evidence by the trial judge, we are not persuaded that the conclusion in favour of the respondents was wrong in fact or law.