Gaskin v Ollerenshaw [2012] NSWCA 33

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gaskin v Ollerenshaw [2012] NSWCA 33 Hearing dates: 17 August 2011 Decision date: 07 March 2012 Before: Basten JA at 1; Campbell JA at 65; Meagher JA at 1 Decision: (1) Allow the appeal and set aside order 3 (judgment for the defendant) and order 4 (plaintiff to pay the defendant's costs) made on 16 July 2010 and entered on 12 August 2010. (2) Direct that there be a new trial in respect of liability and contributory negligence, but not in respect of the assessment of damages. (3) Order that the respondent pay the costs of the appellant of the proceedings in this Court. (4) Direct that the costs of the first trial await the outcome of the new trial, to be determined by the judge conducting the new trial. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). [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: APPEAL - civil - evidence - whether evidence supports inference asserted by plaintiff - whether finding critical to the judgment - whether the judgment should be set aside

TORTS - negligence - duty of care owed by owner of premises to person coming onto premises to carry out work - whether defendant owed an extended duty of care to plaintiff based on knowledge of condition of building - whether defendant had requisite knowledge - whether defendant should have carried out further investigation - whether plaintiff should have made his own investigation