Bamber v Hartman Pacific Pty Ltd [2018] NSWCA 248

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bamber v Hartman Pacific Pty Ltd [2018] NSWCA 248 Hearing dates: 17 August 2018 Decision date: 29 October 2018 Before: Macfarlan JA at [1]; Gleeson JA at [2]; Emmett AJA at [3] Decision: 1. Appeal allowed.

2. Orders made by the primary judge should be set aside.

3. Damages for Mr William Bamber against Hartman Pacific Pty Ltd in the sum of $73,531.47.

4. No order as to costs of the proceedings before the primary judge.

5. Hartman Pacific Pty Ltd to pay 50% of Mr William Bamber's costs of the appeal. Catchwords: TORTS – negligence – where appellant fell while descending a ladder – where appellant suffered serious injury – where ladder manufactured and supplied by the respondent – whether ladder had safety defect when supplied by the respondent – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 138 – whether safety defect to blame for appellant's injury – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 138(1)(c) – whether appellant contributorily negligent – Competition and Consumer Act 2010 (Cth), s 137A – whether primary judge erred in assessment of appellant's credit – whether primary judge erred in assessment of damages Legislation Cited: Competition and Consumer Act 2010 (Cth), Pt VIB, Div 3, ss 87E(1), 87L, 87R, 137A, Sch 2 - Australian Consumer Law, s 138 Civil Liability Act 2002 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.36 Cases Cited: Whalan v Kogarah Municipal Council (2007) 71 NSWLR 150; [2007] NSWCA 5 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Joukhador v Donnelly [1999] NSWCA 468 Texts Cited: J D Heydon, Cross on Evidence (8th ed, 2010, LexisNexis Butterworths) Category: Principal judgment Parties: William Duncan Bamber (Appellant) Hartman Pacific Pty Ltd (Respondent) Representation: Counsel: B Dooley SC with K Balendra (Appellant) R Cheney SC with B Wilson (Respondent) Solicitors: Cater & Blumer Solicitors (Appellant) Meridian Lawyers (Respondent) File Number(s): 2017/312234 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2017] NSWSC 1318 Date of Decision: 29 September 2017 Before: Schmidt J File Number(s): 2015/3199 and 2015/3205