NSW Caselaw
Appeal Outcome: Special leave refused with costs by the High Court - 26 August 2008
New South Wales Court of Appeal
CITATION: Jaber v Rockdale City Council [2008] NSWCA 98
HEARING DATE(S): 17 April 2008
JUDGMENT DATE: 28 May 2008
JUDGMENT OF: Tobias JA at 1; Campbell JA at 59; Handley AJA at 60
DECISION: Appeal dismissed with costs
CATCHWORDS: NEGLIGENCE – Civil Liability Act 2002 – Duty of care – Dive into water causing serious injury – Dive from wharf under care, control and management of public authority – Duty to warn of risk – Whether risk was an 'obvious risk' to reasonable person in position of appellant – Whether dive was a 'dangerous recreational activity' – Whether risk of harm significant – PLEADING – Provisions of statute relied on by respondent not specifically pleaded – No consequential procedural unfairness to appellant.
LEGISLATION CITED: Civil Liability Act 2002 (NSW) s 5F, s 5H, s 5K and s 5L Evidence Act 1995 (NSW) s 135
Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831; [2006] NSWCA 17 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 CASES CITED: Port Stephens Council v Theodorakakis [2006] NSWCA 70 Roads & Traffic Authority NSW v Dederer [2006] NSWCA 101 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wyong Shire Council v Shirt (1980) 146 CLR 40 Wyong Shire Council v Vairy [2004] NSWCA 247
PARTIES: Bilal Jaber Rockdale City Council
FILE NUMBER(S): CA 40411/07
COUNSEL: A: S Norton R: J Stewart
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