McDonald v Shoalhaven City Council [2013] NSWCA 81

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McDonald v Shoalhaven City Council [2013] NSWCA 81 Hearing dates: 2 April 2013 Decision date: 18 April 2013 Before: Beazley P at [1]; Ward JA at [71]; Simpson J at [72] Decision: 1. Appeal allowed; 2. Set aside the verdict and judgment entered for the respondent; 3. Remit the matter to the District Court for rehearing; 4. Order that the respondent pay the appellant's costs of the appeal; 5. Order that the costs of the first trial abide the outcome of the remitted hearing. [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 - statutes and regulations - breach - Civil Liability Act 2002, 3B(1)(f).

TORTS - negligence - statutes and regulations - breach - Civil Liability Act 2002, 5B(1)(b).

TORTS - negligence - duty of care - employment - derivative duty to rescuer.

TORTS - negligence - causation - failure to consider relevant evidence. Legislation Cited: Civil Liability Act 2002 Occupational Heath and Safety Regulation 2001 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Bulstrode v Trimble [1970] VR 840 Chapman v Hearse [1961] HCA 46; 106 CLR 112 Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349 Shaw v Thomas [2010] NSWCA 169 State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Category: Principal judgment Parties: Christopher McDonald (Appellant) Shoalhaven City Council (Respondent) Representation: Counsel: B Toomey QC; M McManamey (Appellant) J Sexton SC; R Gambi (Respondent) Solicitors: Slater & Gordon Lawyers (Appellant) DLA Piper Australia (Respondent) File Number(s): CA 2012/25853 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: Christopher McDonald v Shoalhaven City Council Date of Decision: 2011-10-27 00:00:00 Before: Cogswell DCJ File Number(s): DC 2010/101628