New South Wales Court of Appeal CITATION: Harrington v. Indian Pacific Contracting Pty. Ltd. & Anor. [2005] NSWCA 120 HEARING DATE(S): 15 April 2005 JUDGMENT DATE: 15 April 2005 JUDGMENT OF: Sheller JA at 1, 8; Hodgson JA at 2; Brownie AJA DECISION: Appeal dismissed with costs. CATCHWORDS: TORT - Negligence - Appeal dismissed - Reasons in short form. CASES CITED: Phillis v. Daly (1998) 15 NSWLR 65 Andrew James Harrington - appellant PARTIES: Indian Pacific Contracting Pty. Ltd. - 1st respondent Waterways Authority - 2nd respondent FILE NUMBER(S): CA 40117/04 Mr. B. Gross QC with Mr. J. Reimer for appellant COUNSEL: Mr. L. King SC with Mr. D. Ronzani for respondents Loukas & Co., Sydney for appellant SOLICITORS: McCabe Terrill, Sydney for respondents LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 14055/01 LOWER COURT JUDICIAL OFFICER: Sorby DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40117/04 DC 14055/01 SHELLER JA HODGSON JA BROWNIE AJA Friday 15 April 2005 HARRINGTON V. INDIAN PACIFIC CONTRACTING PTY. LTD. & ANOR. Judgment 1 SHELLER JA: The appeal is dismissed with costs. The Court is of the unanimous opinion that the appeal does not raise any question of general principle, pursuant to s.45 subs.4 of the Supreme Court Act 1970. I will ask Justice Hodgson to give the Court's reasons in short form. 2 HODGSON JA: The primary judge correctly identified the relevant risk of injury as that of injury to the plaintiff or to a class of persons including the plaintiff, and correctly identified the relevant class of persons as those trying to scramble or swing around the end of the fence in the vicinity of the relevant pole: see Phillis v Daly (1998) 15 NSWLR 65 at 67. 3 He correctly regarded that risk as not at all probable. He correctly noted that the pole had stood for eight months. In those circumstances, it was well open to him not to be satisfied that the pole should have been better secured than it was with a wire rope and shackle. 4 In so far as his judgment can be criticised for the assertions that Mr Towson's opinion as to the proximate cause of the plaintiff's fall and the movement of the pole was not relevant, that there was no evidence that the pole was loose and that the duty owed by the respondent did not extend to a person such as the plaintiff, these assertions do not vitiate the judgment. 5 As to the first, the primary judge took into account Mr Towson's evidence as to the mechanics that could possibly explain the movement of the pole, and it is clear that Mr Towson was not in any event able to express any opinion as to what actually caused the pole to fall. 6 As to the second, the only evidence that the pole was in any sense loose was the fact of it falling, and the evidence did not justify a finding that this was due to inadequate securing rather than some other cause such as interference with the wire rope and shackle by some person other than the respondent. 7 As to the third, in its context it should be understood not as altogether denying the existence of any duty whatsoever, but as asserting that the respondent's duty did not extend beyond what the respondent had actually done. 8 SHELLER JA: Accordingly, as I have said the appeal is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.