Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 Hearing dates: 21 August 2014 Decision date: 30 October 2014 Before: McColl JA (at [1]), Macfarlan JA (at [115]), Tobias AJA (at [116) Decision: (1) Grant leave to appeal. (2) Appeal allowed. (3) Set aside the orders made by Curtis DCJ on 30 July 2013. (4) Remit the matter to the District Court for a new trial. (5) Costs of the first trial to be in the discretion of the judge presiding at the second trial. (6) Respondent to pay the appellant's costs of the appeal and the application for leave to appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [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 - whether primary judge failed properly to consider issues of scope of duty of care, risk of harm, breach and causation as required by s 5B, s 5C and s 5D Civil Liability Act

TORTS - negligence - appellant required to clean kitchen benches in accordance with work instructions prepared by respondent - work instructions required appellant to wash bench with detergent and then rinse with hot water - absent hot water supply from tap appellant heated hot water on stove - hot water burnt appellant - appellant claimed respondent negligent for requiring him to heat water in circumstances where he could not gauge its temperature - where primary judge dismissed claim on basis appellant deliberately boiled water - basis on which case dismissed not relied upon by respondent and not put to appellant