Pitt v Gardiner & Anor [2005] NSWCA 144

New South Wales Court of Appeal

CITATION: Pitt v Gardiner & Anor [2005] NSWCA 144

HEARING DATE(S): 3 May 2005

JUDGMENT DATE: 3 May 2005

JUDGMENT OF: Giles JA at 1; Hodgson JA at 18; Tobias JA at 19

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - whether breach of duty of care - whether unreasonable force used in helping with a wheelbarrow causing appellant to fall - no question of principle. ND

CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40

Arthur Pitt - Appellant PARTIES: David Gardiner and Danny Billingsley - Respondents

FILE NUMBER(S): CA 40437/04

COUNSEL: J E Rowe - Appellant

SOLICITORS: D Russell SC & D Priestley - Respondents

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1113/03

LOWER COURT JUDICIAL OFFICER: Rein DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40437/04 DC 1113/03

GILES JA HODGSON JA TOBIAS JA

Tuesday 3 May 2005 PITT v GARDINER & ORS Judgment 1 GILES JA: This is an appeal from a verdict and judgment for the respondents in a claim for damages for personal injury. The question is whether the respondents were in breach of a duty of care owed to the appellant. 2 The appellant and the first respondent were neighbours. On 13 January 2001 the first respondent was moving sand by wheelbarrow from the front of his house to where he was building a shed at the rear. The appellant offered to help and did so. 3 The wheelbarrow had to be taken up three stone steps to a garden area. It was a heavy wheelbarrow when filled with sand. Initially the appellant and the first respondent took it up the steps with the first respondent holding the handles of the wheelbarrow and walking backwards and the appellant pushing the wheelbarrow from the other end. This was done two or three times. 4 The first respondent said he was tired and the appellant offered to take over the part of going backwards up the steps. When the appellant was standing at the top of the steps holding the handles of the wheelbarrow the second respondent, the son of the first respondent, came across and helped the first respondent push the wheelbarrow from the other end. The appellant said that he "did not realise he was going to go so fast" and that he went over backwards. He said, "Well, I couldn't walk back fast enough to - and hold the barrow up and keep control of it and I just went over backwards". 5 The appellant let go of the wheelbarrow and fell on his backside onto the ground, and suffered a fracture of the L2 vertebra. 6 The appellant's submission before the judge was to the effect that the system of work involved was potentially dangerous because, although there was no danger if the respondents pushed the wheelbarrow with appropriate force, the application of excessive force was likely to push the person holding the handles of the wheelbarrow backwards with risk of injury. The respondents conceded that they owed a duty of care to the appellant, although not as to a system of work but as to the particular occasion of pushing the wheelbarrow. 7 The case was subject to the Civil Liability Act 2002, and before the judge particular attention was given to s 5B, which reads as follows: " 5B General principles