Burton v Brooks [2011] NSWCA 175

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Burton v Brooks [2011] NSWCA 175 Hearing dates: 21 June 2011 Decision date: 01 July 2011 Before: Hodgson JA at [1] Macfarlan JA at [2] Tobias AJA at [49] Decision: Appeal dismissed with costs. [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 - plaintiff falls into empty swimming pool whilst assisting defendant in tree-lopping activity - family relationship - nature and content of duty of care owed by defendant as occupier of property and organiser of activity - open to defendant not to engage in activity - whether plaintiff required to prove precautions that could have been taken where it was open to defendant not to engage in activity

DAMAGES - negligence - personal injury - future economic loss - earning capacity - award of buffer to compensate plaintiff for risk that his present employment may cease in the future Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Agresta v Agresta [2010] NSWCA 330 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Laresu Pty Ltd v Clark [2010] NSWCA 180; [2010] Aust Torts Reports [82-068] Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 Penrith City Council v Parks [2004] NSWCA 201 Stretenovic v Reed [2009] NSWCA 280 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 Category: Principal judgment Parties: Trevor Burton (Appellant) Troy Brooks (Respondent) Representation: Counsel: G M Watson SC/R Gambi (Appellant) M J Cranitch SC/A D Campbell (Respondent) Solicitors: Moray & Agnew (Appellant) Parramatta City Legal (Respondent) File Number(s): CA 2010/48904 Decision under appeal Citation: Troy Brooks v Trevor Burton Date of Decision: 2010-02-12 00:00:00 Before: Garling DCJ File Number(s): DC 264/2009