Wynn Tresidder Management v Barkho [2009] NSWCA 149

New South Wales Court of Appeal

CITATION: Wynn Tresidder Management v Barkho [2009] NSWCA 149

HEARING DATE(S): 5 May 2009

JUDGMENT DATE: 16 June 2009

JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Young JA at 114

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORTS – negligence – dangerous premises – duty of care – slip and fall in shopping centre – whether occupier's duty of care discharged by steps taken by subcontractor cleaners to warn of wet floor and to mop wet areas – relevance of entrant's inadvertence TORTS – negligence – causation – whether causal link between occupier's duty of care and entrant's slip – occupier's conduct materially contributed to entrant's injury TORTS – negligence – contributory negligence – where entrant did not notice three warning cones on ramp, caution sign or cleaner STATUTES – acts of parliament – enforcement of statutory rights and remedies - whether cl 34 and cl 36 of Occupational Health and Safety Regulation 2001 confer private causes of action on members of public – whether such contrariety between Civil Liability Act 2002 and Occupational Health and Safety Act 2000 and Regulation as to constitute implied repeal – whether claim for breach of statutory duty which is in substance a claim for damages for harm resulting from negligence to be determined in accordance with Civil Liability Act EVIDENCE – admissibility and relevance – opinion evidence – medical reports – admitted without objection - weight of evidence APPEAL AND NEW TRIAL – appeal – excessive or inadequate damages – review of primary judge's conclusion as to severity of non-economic loss – general principles

Civil Liability Act 2002 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Occupational Health and Safety Act 2000 Occupational Health & Safety Regulation 2001