Shoalhaven City Council v Pender [2013] NSWCA 210

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shoalhaven City Council v Pender [2013] NSWCA 210 Hearing dates: 28 March 2013 Decision date: 10 July 2013 Before: McColl JA [1] Barrett JA [98] Ward JA [99] Decision: 1. Appeal allowed. 2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside. 3. In lieu thereof order that there be verdict in favour of the appellant. 4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court. [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 - occupier's liability - slip and fall on ferry ramp - whether conclusion as to how plaintiff fell available either from direct evidence or by inference - whether circumstances raised a more probable inference in favour of plaintiff's case

TORTS - negligence - Civil Liability Act 2002, s 5B and s 5C - breach of duty of care - identification of risk of harm - whether risk of slipping on dry concrete surface of boat ramp "not insignificant" - whether evidence of unreasonable failure to take precautions against risk of harm

TORTS - negligence - Civil Liability Act 2002, s 5D - causation - necessary condition of harm - whether absence of adequate cleaning system cause of injury