Sangha v Baxter [2007] NSWCA 264

New South Wales Court of Appeal

CITATION: Sangha v Baxter [2007] NSWCA 264

HEARING DATE(S): 31/07/07

JUDGMENT DATE: 28 September 2007

JUDGMENT OF: Ipp JA at 1; Campbell JA at 27; Young CJ in Eq at 28

DECISION: (1) The appeal is upheld; (2) The judgment and orders made by the trial judge are set aside; (3) The matter is remitted to the District Court for retrial; (4) The respondent to pay the appellant's costs of the appeal; (5) The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled; (6) The costs of the trial to be determined by the trial judge at the remitted trial.

CATCHWORDS: APPEAL AND NEW TRIAL- When appeal lies- Error of law- Failure to give adequate reasons for decision- Appeal in negligence action- Appellant raised defences of self-defence, criminal enterprise and contributory negligence at trial- Primary judge largely rejects defences- Judge gives reasons seemingly without aid of transcript- Omits reference to significant parts of evidence- Held judge failed in reasons to properly engage with appellant's case- New trial ordered. TORTS- Negligence - Contributory negligence- How assessed- Primary judge erred in principle- Apportionment of liability revised. TORTS- Negligence- Miscellaneous defences- Illegality of plaintiff's activity- Discussion of Civil Liability Act, s 54- Damages not awarded if plaintiff injured following his committing a serious offence- Injury follows offence if clearly associated with it in time, place and circumstances.

LEGISLATION CITED: Civil Liability Act 2002, ss 5R, 52, 53, 54

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Consolidated Broken Hill v Edwards (2005) Aust Torts Rep 81-815 Gala v Preston (1991) 172 CLR 243 Godbolt v Fittock (1963) 63 SR (NSW) 617 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 CASES CITED: Re Lean (1993) 66 A Crim R 296 Smith v Jenkins (1970) 119 CLR 397 Teper v The Queen [1952] AC 480 Vairy v Wyong Shire Council (2005) 223 CLR 422 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Zecevic v DPP (1987) 162 CLR 645