NSW Caselaw
New South Wales Court of Appeal
CITATION: Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135
HEARING DATE(S): 8 May 2009
JUDGMENT DATE: 9 June 2009
JUDGMENT OF: Giles JA at 1; Ipp JA at 3; McColl JA at 89
(a) The appeal is upheld and the cross-appeal is dismissed; DECISION: (b) The orders made by Nield DCJ are set aside and in lieu thereof there is to be a verdict and judgment for Coles; (c) Ms Tormey to pay the costs of the trial and the costs of the appeal, and; (d) Ms Tormey to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
CATCHWORDS: TORTS - negligence - duty of care - duty to protect against acts of third parties - where respondent customer injured on appellant's premises by other customers' unruly behaviour with trolley - whether appellant, by its employees, knew of activities creating risk of injury to the respondent. - EVIDENCE - general - other general matters - unexplained failure to call witnesses - whether Jones v Dunkel inference available - burden of explaining absence of witnesses. - APPEAL - appeal - general principles - law applicable at the time of appeal by way of rehearing - where change in law after trial subsequently reversed by statute prior to hearing of the appeal.
Civil Liability Act 2002 LEGISLATION CITED: Civil Liability Legislation Amendment Act 2008 Suitors' Fund Act 1951
CATEGORY: Principal judgment
Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 Cai v Zheng [2009] NSWCA 13 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Eggins v Brooms Head Bowling & Recreational Club (1986) 5 NSWLR 521 Guiney v Australand Holdings Ltd [2008] NSWCA 44 Harrison v Melham [2008] NSWCA 67 CASES CITED: HML v R [2008] HCA 16; (2008) 235 CLR 334 Jones v Dunkel [1995] HCA 8; (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 R v Vaitaiki (NSW Court of Criminal Appeal, Unreported, 8 October 1993) South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 State of New South Wales v Bujdoso (2007) NSWCA 44; (2007) 69 NSWLR 302 TAB Ltd v Atlis [2004] NSWCA 322 Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279; (2006) 68 NSWLR 387
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