Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198

New South Wales Court of Appeal

CITATION: Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198

HEARING DATE(S): 3 July 2006

JUDGMENT DATE: 25 July 2006

JUDGMENT OF: Handley JA at 1; Giles JA at 2; Tobias JA at 25

DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff and the order that the defendant pay the plaintiff's costs, and in lieu thereof order that there be verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs; (3) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: Failure to take reasonable care - bus passenger slipped and fell on banana in aisle - whether established failure - when and how banana came to be there - no higher than conflicting inferences of equal probability - not established. ND

LEGISLATION CITED: Trade Practices Act 1974

CASES CITED: Luxton v Vines (1952) 85 CLR 352.

PARTIES: Westbus Pty Ltd (Administrators Appointed) - Appellant Salwak Ishak - Respondent

FILE NUMBER(S): CA 40488/05

COUNSEL: A J Stone - Appellant M R Aldridge SC & I Ryan - Respondent

SOLICITORS: A R Conolly & Company - Appellant Bryden's Law Office - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2338/03

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 19 May 2005

LOWER COURT MEDIUM NEUTRAL CITATION: (McLoughlin DCJ, 19 May 2005, unreported)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40488/05 DC 2338/03