NSW Caselaw
New South Wales Court of Appeal
CITATION: Volman t/a Volman Engineering v. Lobb & Anor.; Mobil Oil Australia Pty. Ltd. v. Lobb & Anor [2005] NSWCA 348
HEARING DATE(S): 26 August 2005
JUDGMENT DATE: 31 October 2005
JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Tobias JA at 78
DECISION: 1. Appeal CA40651/04 allowed in part, and the cross-appeal allowed in part. 2. Judgment below for $122,268.77 against Volman and Mobil set aside, and in lieu thereof judgment for $117,156.02 against Volman and Mobil. 3. Judgment on the cross-claims below set aside, and in lieu thereof declaration that as between Volman and Mobil each is liable for 50% of Mr. Lobb's judgment and costs, with each having liberty to apply for a judgment after satisfaction of Mr. Lobb's judgment. 4. Appeal C40904/04 dismissed, and the cross-appeal dismissed. 5. Volman to pay 95% of Mr. Lobb's costs of appeal CA40561/04 and the cross-appeal. 6. Mobil to pay 95% of Mr. Lobb's costs of appeal CA40904/04 and the cross-appeal.
CATCHWORDS: TORT - Negligence - Nuisance - Pedestrian slipping on mud on footpath - Whether lack of care for his own safety defeats claim in negligence - Whether person carrying out operations on adjoining land that caused the mud to escape liable in nuisance - Whether owner also liable - Whether owner should have known that nuisance occurring.
A.V. Jennings Ltd. v. Thomas [2004] NSWCA 309 Australian Safeway Stores v. Zaluzna (1987) 162 CLR 479 Bartolo v. Owners of Strata Plan No.10535 [2005] NSWCA 256 Burnie Port Authority v. General Jones Pty. Ltd. (1994) 179 CLR 520 Burwood Council v. Byrnes [2002] NSWCA 343 Cartwright v. McLaine & Long Pty. Ltd. (1979) 143 CLR 549 Cartwright v. McLaine & Long Pty. Ltd. (1979) 143 CLR 549 Darlington Futures Ltd. v. Delco Australia Pty. Ltd. (1986) 161 CLR 500 Dymond v. Pearce [1972] 1 QB 496 Fennell v. Robson Excavations Pty. Ltd [1977] 2 NSWLR 486 CASES CITED: Florida Hotels Pty. Ltd. v. Mayo (1965) 113 CLR 588 Ghantous v. Hawkesbury City Council (2001) 206 CLR 512 Gillies v. Saddington [2004] NSWCA 110 Oxley County Council v. MacDonald (1999) NSWCA 126 Phillis v. Daly (1988) 15 NSWLR 65 Richmond Valley Council v. Standing [2002] NSWCA 359, 127 LGERA 237 Sutherland Shire Council v. Henshaw [2004] NSWCA 386 Temora Shire Council v. Stein [2004] NSWCA 236, 134 LGERA 407 Torette House Pty. Ltd. v. Berkman (1940) 62 CLR 637 Turnbull v. Alm [2004] NSWCA 173
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