Caruana v Darouti [2014] NSWCA 85

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Caruana v Darouti [2014] NSWCA 85 Hearing dates: 06/03/2014 Decision date: 28 March 2014 Before: Emmett JA at [1]; Leeming JA at [50]; McDougall J at [54] Decision: Appeal dismissed with costs. [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 - respondent slipped on appellant's driveway - whether appellant was negligent in resealing driveway - whether slip was reasonably foreseeable in circumstances where no prior accident - whether accident was caused by a positive act - whether reasonable care extended to erecting a handrail - whether trial judge failed to have regard to authorities - application of s 5B of the Civil Liability Act 2005 (NSW) to positive acts Legislation Cited: Civil Liability Act 2002 (NSW), s 5B, s 34 Civil Procedure Act 2005 (NSW), s 56(3) Evidence Act 1995 (NSW), s 79 Cases Cited: Drinkwater v Howarth [2006] NSWCA 222 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Fitzsimmons v Coles Supermarket Australia Pty Ltd [2013] NSWCA 273 Francis v Lewis [2003] NSWCA 152 Category: Principal judgment Parties: Rita Caruana as executor of the estate of the late Antoinette Caruana and on her own behalf (Appellant) George Darouti (Respondent) Representation: Counsel: SE McCarthy / ND Compton (Appellant) RS Sheldon SC / MA Campbell (Respondent) Solicitors: AR Conolly & Company Lawyers (Appellant) Maxwell Berghouse & Ives Solicitors (Respondent) File Number(s): 2013/119257 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-04-04 00:00:00 Before: Kearns DCJ File Number(s): 2011/130146