Critchley v Cross [2000] NSWSC 6

New South Wales Supreme Court

CITATION : Critchley v Cross [2000] NSWSC 6 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20459/95 HEARING DATE(S) : 6-7 December, 14 December 1999 JUDGMENT DATE : 8 February 2000

PARTIES : Dennis John Critchley (Plaintiff) Janet Buchan Cross (Defendant) JUDGMENT OF : Studdert J

COUNSEL : W. Terracini QC/K. Andrews (Plaintif) L. King SC (Defendant) SOLICITORS : Turner Whelan (Plaintiff) Henry Davis York (Defendant) CATCHWORDS : Negligence - plaintiff a trespasser on property beside Shoalhaven River - action against owner/occupier - plaintiff fell into crevice - whether duty of care arose, and if so whether breach of duty of care. LEGISLATION CITED : Limitation Act Evidence Act Southern Cement Limited v Cooper (1974) AC 623 Hackshaw v Shaw (1984) 155 CLR 615 Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 CASES CITED : Phillis v Daly (1988) 15 NSWLR 65 Morgan v Sherton Pty Limited (1999) 46 NSWLR 141 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Wyong Shire Council v Shirt (1979-80) 164 CLR 40 DECISION : Judgment for the defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Tuesday 8 February 2000 20459/95 DENNIS JOHN CRITCHLEY v JANET BUCHAN CROSS

JUDGMENT

1 HIS HONOUR: Dennis John Critchley has brought proceedings against Janet Buchan Cross claiming damages for serious spinal injury which he claims to have sustained when he fell into a crevice on the defendant's property located beside the Shoalhaven River on 5 July 1987. That property is in a lonely heavily timbered area a considerable distance from the town of Nowra. 2 The plaintiff bases his action in negligence: it is his case that the defendant, as the occupier of the land where the accident happened, owed to him a duty of care and the plaintiff has pleaded that the defendant was in breach of duty in the following respects (referring to para 4 of the statement of claim): "(a) Failing to warn the Plaintiff of the danger in approaching or of the danger traversing the property. (b) Failing to take any or any adequate steps to fence the crevice. (c) Failing to fill in or barricade the crevice. (d) Failing to take any or any reasonable precautions to prevent injury to the Plaintiff. (e) Failing to take any or any adequate precautions for the safety of the Plaintiff. (f) Exposing the Plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care. (g) Failing to provide any or any suitable warning signs warning the Plaintiff of the presence of the crevice or hole." 3 The defendant has denied negligence and in the alternative has pleaded contributory negligence. 4 Although the accident happened so long ago and the statement of claim was not filed until May 1995, the issue under the Limitation Act was earlier resolved in favour of the plaintiff, so that at this trial the relevance of the lapse of time since the accident has only been to consider its impact upon the recollection of the various witnesses who have given evidence, and any relevant changes on the property where the plaintiff met with his accident.