Sheridan & Anor v Borgmeyer [2006] NSWCA 201

New South Wales Court of Appeal

CITATION: Sheridan & Anor v Borgmeyer [2006] NSWCA 201 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 June 2006

JUDGMENT DATE: 14 June 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 43; Tobias JA at 44

EX TEMPORE JUDGMENT DATE: 06/14/2006

DECISION: 1. The appeal is dismissed; 2. The appellants are to pay the respondent's costs of the appeal, such costs to be on an indemnity basis from 2 February 2006; 3. The cross appeal is allowed. I set aside the verdict of $361,459.90 ordered by the trial judge; 4. Verdict for the respondent in the sum of $439,072.57 together with interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW) in the sum of $39,516.53 making a total sum of $478,589.10; 5. The appellants are to pay the respondent's costs of the cross-appeal and to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.

CATCHWORDS: DUTY OF CARE – failure to provide guardrail around shearing platform – foreseeable risk of injury from falling from platform – obviousness of risk of falling from platform nullified by circumstances of the accident – reasonable response to risk was to provide guardrail around platform – breach of duty - CAUSATION – whether guardrail would have prevented injuries – question of fact – the finding that a guardrail would have restrained the respondent's fall was open to the trial judge – no error - CONTRIBUTORY NEGLIGENCE – whether trial judge erred in not finding respondent contributorally negligent – no error - DAMAGES – claim for past and future gratuitous care services – evidence at trial of respondent's need for services – failure of trial judge to give adequate reasons for rejecting claim