Pacific Access Pty Limited v Davies [2001] NSWCA 218

New South Wales Court of Appeal

CITATION : Pacific Access Pty Limited v Davies [2001] NSWCA 218 FILE NUMBER(S) : CA 40547/99 HEARING DATE(S) : 7 February 2001 JUDGMENT DATE : 12 July 2001

PARTIES : Pacific Access Pty Limited v Lois Davies JUDGMENT OF : Priestley JA at 1; Powell JA at 54; Heydon JA

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20742/94 FILE NUMBER(S) : LOWER COURT Adams J JUDICIAL OFFICER :

COUNSEL : Appellant - R. Burbidge QC / R. Sergi Respondent - P. Donohoe QC / J. Dodd SOLICITORS : Appellant - Hickson Wisewoulds Respondent - Marsdens CATCHWORDS : Respondent assaulted in Port Moresby in the course of her employment with the appellant - breach of duty of care - liability and quantum Chomentowski v Red Garter Restaurant Pty Limited (1970) 92 WN 1070 CASES CITED: General Cleaning Contractors Limited v Christmas [1953] AC 180 194 McLean v Tedman 7 ED (1987) 485 DECISION : (By majority) Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40547/99 CLD 20742/94

PRIESTLEY JA POWELL JA HEYDON JA

Thursday, 12 July 2001

PACIFIC ACCESS PTY LIMITED v DAVIES The plaintiff was employed by the defendant as a sales consultant. When visiting a client's premises in Port Moresby the plaintiff was attacked by a thief. Adams J found the defendant liable to the plaintiff for injuries caused by the attack on the basis that the defendant's warnings to her about conditions in Port Moresby and how to deal with them were inadequate. The defendant appealed, submitting that it had not been in breach of its duty of care. The plaintiff by notice of contention argued that she had been entitled to succeed on a further particular of negligence not relied on by the judge. Held: Powell JA dissenting, that the trial judge had not been in error in finding duty and breach; the appeal should be dismissed; and that the plaintiff should also have succeeded on the ground relied on in her notice of contention. ORDERS Appeal dismissed with costs.