Swift v Wearing-Smith [2016] NSWCA 38

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Swift v Wearing-Smith [2016] NSWCA 38 Hearing dates: 20 July 2015 Date of orders: 10 March 2016 Decision date: 10 March 2016 Before: Meagher JA at [1] Hoeben JA at [13] Simpson JA at [147] Decision: (1) The appeal is allowed. (2) The verdict and judgment in favour of the respondent on 9 October 2014 is set aside. (3) In lieu thereof, there be verdict and judgment in favour of the appellants. (4) The order for costs of the trial in favour of the respondent is set aside. (5) In lieu thereof, the respondent is ordered to pay the appellants' costs of the trial. (6) The respondent is to pay the appellants' costs of the appeal. Catchwords: TORT – negligence – guest falling from first floor verandah as a result of balustrade giving way – proceedings brought against owners of premises – content of duty of care – building inspection report obtained before purchase of property – extent to which owners were on notice of defect in balustrade before accident – extent to which owners should have been on notice of defect – whether response by owners reasonable – breach of duty and causation – appeal by owners allowed. Legislation Cited: Civil Liability Act 2002 (NSW) – s 5B, s 5D(1)(a) Cases Cited: Ahluwalia and Ors v Robinson [2003] NSWCA 175 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hatziandoniou v Ruddy [2015] NSWCA 234 Jones v Bartlett [2000] HCA 56; 205 CLR 166 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431 Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wearing-Smith v Swift [2014] NSWDC 159 Category: Principal judgment Parties: Anthony John Swift – First Appellant Kim Louise Swift – Second Appellant Peter Wearing-Smith - Respondent Representation: Counsel: Mr JM Morris SC/Ms R Bianchi – First and Second Appellants Mr M Cranitch SC/Mr T Meakes - Respondent