Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284

New South Wales Court of Appeal

CITATION: Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 September 2010

JUDGMENT DATE: 8 November 2010

JUDGMENT OF: Campbell JA at 1; Handley AJA at 2; Sackville AJA at 3

1. Appeal allowed. 2. The orders made by the primary Judge on 10 November 2009 be set aside. 3. In lieu thereof: DECISION: (a) judgment be entered for the Council; and (b) the respondent be ordered to pay the Council's costs of the proceedings. 4. The respondent pay the Council's costs of the appeal. 5. The respondent, if otherwise qualified, have a certificate under the Suitors Fund Act 1957.

CATCHWORDS: TORTS – negligence – injury as a result of a fall into an unfenced pit at tip - whether risk of harm was "not insignificant" - whether primary judge took into account probability of harm if precautions were not taken - whether a reasonable person in the position of the occupier of the tip would have erected a protective wall - need to consider the risks created by the alternative safety strategy, in particular of those injuries occurring - Civil Liability Act 2002 (NSW), s 5B(1)(b)

LEGISLATION CITED: Civil Liability Act 2002 (NSW) Suitors Fund Act 1957 (NSW)

CATEGORY: Principal judgment

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 Cruise Group Pty Ltd v Fullard [2005] NSWCA 161 CASES CITED: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 6; 205 CLR 254 Sheridan v Borgmeyer [2006] NSWCA 201 Thompson v Woolworths (Queensland) Pty Ltd: [2005] HCA 9; 221 CLR 234 Toll Transport Pty Ltd v Haskins [2008] NSWCA 244 Warren v Coombes [1979] HCA 9; 142 CLR 531