AV Jennings Limited v Thomas [2004] NSWCA 309

New South Wales Court of Appeal

CITATION : AV Jennings Limited v Thomas [2004] NSWCA 309 HEARING DATE(S) : 01/09/2004 JUDGMENT DATE : 1 November 2004

JUDGMENT OF : Beazley JA at 1; Bryson JA at 2; Palmer J at 64 DECISION : Appeal dismissed with costs.

CATCHWORDS : NEGLIGENCE - OCCUPIERS LIABILITY - workplace - entrant (carpet cleaning contractor) attended to clean carpets in building recently transported bodily to new site - builder's foreman directed entrant to attend for work at 7.30 am before building was opened and gave him keys to front door - front door accessible by stairs - when he arrived there were mounds of wet mud at the foot of stairs - while carrying equipment he stepped over mound of mud and his foot slipped on mud on lowest stair. District Court awarded damages. Consideration of: duty of care of occupier in control of a workplace: assumption of exercise of reasonable care by entrant: contributory negligence of entrant: development of personal responsibility in negligence law: significance of entrant's knowledge of a danger [40] "It remains the law that allowance must be made for inadvertence and that an occupier owes a duty of care even to careless entrants." Held: decision on liability should not be disturbed. - DAMAGES - contentions that there were errors in assessment of damages, which related to factual questions, were rejected. AC Billings & Sons Ltd v Riden [1958] AC 240 Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 Bus v. Sydney County Council (1989) 167 CLR 78 David Jones Ltd v. Bates [2001] NSWCA 233 Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Kolodziejczyk v Grandview Pty Limited (2002) Aust Torts Reports 81-673 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 CASES CITED : McFerran v. Randle (1903) 3 SR (NSW) 445 Mountney v. Smith (1903) 3 SR (NSW) 668 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Richmond Valley Council v. Standing [2002] NSWCA 359 Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431 Sydney County Council v. Dell'Oro (1974) 132 CLR 97 Turnbull v Alm & Anor [2004] NSWCA 173 Van der Sluice v Display Craft Pty Limited [2002] NSWCA 204 Waverley Municipal Council v. Swain [2003] NSCA 61 PARTIES : AV Jennings Limited - Appellant Barry John Thomas - Respondent FILE NUMBER(S) : CA 40785 of 2003 COUNSEL : J. Maconachie SC and M. Windsor - Appellant D. Kennedy SC and G. Smith - Respondent SOLICITORS : Hunt & Hunt - Appellant Bale Boshev - Respondent