Bader v Jelic [2011] NSWCA 255

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bader v Jelic [2011] NSWCA 255 Hearing dates: 3 August 2011 Decision date: 31 August 2011 Before: Macfarlan JA at [1] Young JA at [48] Sackville AJA at [49] Decision: (1) Appeal allowed. (2) Judgment entered and orders made at first instance set aside. (3) Judgment in the proceedings for the appellants. (4) Order the respondent to pay the costs of the appellants of the proceedings at first instance and on appeal. (5) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified. [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 plate glass window when attending at defendants' home unit to undertake work - plaintiff contended that a reasonable person in the position of the defendants would have taken precaution of lowering blind over window to ensure it was not mistaken for a door - whether primary judge failed to apply the provisions of the Civil Liability Act - significance of accident-free history - fact that premises could be made safer does not mean they are dangerous or defective - Jones v Bartlett (2000) 205 CLR 166 applied Legislation Cited: Civil Liability Act 2002 Cases Cited: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Laresu Pty Ltd v Clark [2010] NSWCA 180; (2010) Aust Torts Reports [82-068] Category: Principal judgment Parties: Edward Bader (First Appellant) Gerardina Bader (Second Appellant) Steven Jelic (Respondent) Representation: Counsel: G M Watson SC/R G Gambi (Appellants) S Norton SC/E E Welsh (Respondent) Solicitors: McCabe Terrill Lawyers (Appellants) Brydens Compensation Lawyers (Respondent) File Number(s): CA 2010/224431-002 Decision under appeal Citation: Steven Jelic v Edward Bader and Gerardina Bader Date of Decision: 2010-07-02 00:00:00 Before: Cogswell DCJ File Number(s): DC 315357/2008