DAY v PERISHER BLUE PTY LTD [2005] NSWCA 110

Reported Decision : 62 NSWLR 731

New South Wales Court of Appeal

CITATION: DAY v PERISHER BLUE PTY LTD [2005] NSWCA 110

HEARING DATE(S): 2 March 2005

JUDGMENT DATE: 11 April 2005

JUDGMENT OF: Sheller JA at 1; McColl JA at 38; Windeyer J at 39

DECISION: 1 Appeal allowed; 2 Set aside the verdict and judgment in favour of the defendant of 1 October 2003; 3 Order a new trial of the proceedings; 4 The respondent/defendant to pay the plaintiff's costs of the hearing before his Honour Judge Patten; 5 The respondent to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6 The defendant's solicitors to have 7 days from the date of this judgment to show cause why, after the proceedings are disposed of by a new trial or otherwise, the judgment and the appeal papers should not be referred to the Legal Services Commissioner.

CATCHWORDS: Practice and procedure - conduct of witnesses - conduct of solicitors - coaching of witnesses

LEGISLATION CITED: N/A

CASES CITED: N/A

Darrel Justin Day - Appellant PARTIES: Perisher Blue Pty Ltd - Respondent

FILE NUMBER(S): CA 40936/03

M J McAuley - Appellant COUNSEL: R E Montgomery - Respondent

Low Doherty & Stafford - Appellant SOLICITORS: Dibbs Barker Gosling - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 7158/01

LOWER COURT JUDICIAL OFFICER: Patten DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40936/03 DC 7158/01

SHELLER JA McCOLL JA WINDEYER J DAY v PERISHER BLUE PTY LTD This is an appeal from a judgement of the District Court of 1 October 2003 which dismissed a claim made by Day, a J-Bar operator in the ski fields at Guthega, who alleged he was struck by an errant skier in the course of his employment as a consequence of his then employer, Perisher Blue Pty Ltd, breaching its duty of care to Day by failing to provide a safe system of work.