Price v State of New South Wales [2011] NSWCA 341

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Price v State of New South Wales [2011] NSWCA 341 Hearing dates: 24 August 2011 Decision date: 10 November 2011 Before: Allsop P at 1 Beazley JA at 61 Giles JA at 62 Decision: 1. Appeal allowed. 2. Orders of the District Court made on 23 July 2010 be set aside and in lieu thereof it be ordered as follows: (a) Judgment for the plaintiff in the sum of $176,683.50 to take effect as at 23 July 2010. (b) The defendant pay the plaintiff's costs. 3. The respondent pay the appellant's costs of the appeal. 4. Grant leave to file within 14 days, a notice of motion seeking to vary, or consent orders varying, the terms of these orders to reflect judgment for the appellant in the amount contingently assessed by the primary judge as 70 per cent of the total loss recoverable. [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 - appellant sustained injury to eye whilst inmate at correctional centre - injury caused by being struck by tennis ball during match - appellant seated behind baseline in area where balls being served and received - risk of injury not remote - primary judge erred in carrying out evaluative task required by Civil Liability Act 2002 (NSW), s 5B and Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40.