Sibraa v Brown [2012] NSWCA 328

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sibraa v Brown [2012] NSWCA 328 Hearing dates: 17 September 2012 Decision date: 12 October 2012 Before: Campbell JA at [1] Hoeben JA at [77] Tobias AJA at [78] Decision: (1) Appeal allowed. (2) Set aside the verdict for the Respondent in the court below. (3) In lieu thereof, order that the proceedings below be dismissed with costs. (4) Respondent to pay the costs of the Appellant of the appeal. (5) Respondent to have a certificate under the Suitors Fund Act 1951. [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 - occupier's liability - negligence - where plaintiff tripped in the darkness on a piece of wire mesh situated on the front lawn of defendant - whether risk of injury foreseeable - whether duty of care breached - usual case that lawns have upon them various objects and obstacles - ordinary homeowner would not be expected to remove or illuminate all potential obstacles to free progress on his or her lawn - s 5B(1)(c) Civil Liability Act not satisfied - defendant not negligent Legislation Cited: Civil Liability Act 2002 Suitors Fund Act 1951 Wrongs Act 1936 (SA) Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Halliday v Neville (1984) 155 CLR 1 Jaenke v Hinton [1995] QCA 484; Aust Torts Reports ¶81-368 Laresu Pty Ltd v Clark [2010] NSWCA 180 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Phillis v Daly (1988) 15 NSWLR 65 Shaw v Thomas [2010] NSWCA 169 Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reports ¶81-818 Woolworths Limited v Strong [2010] NSWCA 282 Category: Principal judgment Parties: Noel Sibraa (Appellant) Dorothy Brown (Respondent) Representation: Counsel: J Sexton SC; D Priestley (Appellant) I D Roberts SC; K Oldfield (Respondent) Solicitors: Riley, Gray-Spencer Lawyers (Appellant) Riordan Legal Pty Ltd (Respondent) File Number(s): 2011/330143 Decision under appeal Date of Decision: 2011-06-08 00:00:00 Before: Neilson DCJ File Number(s): 2010/11608