State of New South Wales v Steed [2001] NSWCA 178

New South Wales Court of Appeal

CITATION : State of New South Wales v Steed [2001] NSWCA 178 FILE NUMBER(S) : CA 40414/00 HEARING DATE(S) : 12/06/01 JUDGMENT DATE : 21 June 2001

PARTIES : State of New South Wales v Elizabeth Ann Steed JUDGMENT OF : Heydon JA at 1; Young CJ in Eq at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 344/00 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : P Taylor SC/E R Sergi (Appellant) S L Walmsley SC/H J Marshall (Respondent) SOLICITORS : Lynn Boyd (Appellant) Marsdens (Respondent) CATCHWORDS : TORT - Negligence - Duty of care - Occupier's liability - Whether foreseeable risk of injury present - condition of earthen mound - significant risk of harm due to unsafe condition of mound after heavy rain - risk of carelessness on the part of entrants to be expected - scope of duty of occupier - occupier should have taken steps to avoid possibility of injury from walking across mound after heavy rain - Contributory negligence - apportionment. - DAMAGES - Assessment of damages - Loss of past earning capacity - error in assessing loss due to wrong finding that respondent would have worked full-time - Loss of future earning capacity - error in assessing damages - Damages for domestic assistance. D Brodie v Singleton Shire Council [2001] HCA 29 Morgan v Sherton Pty Limited (1999) 46 NSWLR 141 Wyong Shire Council v Shirt (1980) 146 CLR 40 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 CASES CITED: Agar v Hyde (2000) 74 ALJR 1219 Prast v Town of Cottesloe (2000) 22 WAR 474 Mountain Cattlemen's Association of Victoria Inc v Barron [1998] 3 VR 302 Secretary to the Department of Natural Resources and Energy v Harper [2000] 1 VR 133 Phillis v Daly (1988) 15 NSWLR 65 Overseas Tank Ship (UK) Limited v The Miller Steamship Company Pty Limited [1967] 1 AC 617 DECISION : (1) Appeal upheld and orders made by Delaney DCJ be set aside (2) Verdict and judgment for the respondent in the sum of $358,977.75 (being 75% of $478,637.00) (3) Appellant to pay the respondent's costs of the trial and the respondent pay the appellant's costs of the appeal (4) The respondent to have a certificate under the Suitors' Fund Act.