REED v WARBURTON [2011] NSWCA 98

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: REED v WARBURTON [2011] NSWCA 98 Hearing dates: 7 April 2011 Decision date: 20 April 2011 Before: Hodgson JA at 1; Basten JA at 2; Handley AJA at 52 Decision: (1) Allow the appeal and set aside the orders made by the District Court on 9 February 2010. (2) In place of those orders, give judgment for the appellant in an amount of $105,000, together with pre-judgment interest, the judgment to take effect from 9 February 2010. (3) Direct each party to: (a) file written submissions (and any evidence on which he or they may seek to rely) in respect of the costs of the trial and the appeal within 14 days of delivery of this judgment; (b) file submissions in reply (if any) within 21 days of delivery of this judgment. (4) Grant the respondents a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - breach of duty of care - foreseeable risk - whether failure to take reasonable care broader than failure to take precautions - Civil Liability Act 2002 (NSW), s 5B(1).

TORTS - negligence - breach of duty of care - use of oxyacetylene torch near wall made of straw bales - ignition of hand-packed straw - defendant knew of gap in wall-lining, but did not know what was in the wall - Civil Liability Act 2002 (NSW), s 5B(2).