Scone Race Club Ltd v Cottom [2019] NSWCA 260

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Scone Race Club Ltd v Cottom [2019] NSWCA 260 Hearing dates: 29 August 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Before: Gleeson JA at [1]; Brereton JA at [2]; Emmett AJA at [6] Decision: 1. Leave to rely upon notice of contention refused. 2. Appeal allowed. 3. Cross-appeal dismissed. 4. Orders of the District Court made on 2 November 2018 be set aside and in lieu of those orders order that: (a) judgment be given for the defendant, and (b) the plaintiff pay the defendant's costs. 5. The respondent pay the appellant's costs of the appeal. 6. The respondent have a certificate under the Suitors' Fund Act 1951 (NSW) if he is otherwise entitled to a certificate. Catchwords: TORTS – Whether the Club breached the duty of care it owed to the Worker as an employee of the Club – Whether reasonable care on the part of the Club required that it install concrete pads upon which to place rubbish bins.

APPEALS – whether leave should be granted to raise an argument by notice of contention that was not advanced on the pleadings and was not put to witnesses at trial who could have met the argument with evidence. Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Occupational Health & Safety Act 2000 (NSW) Suitors' Fund Act 1951 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Category: Principal judgment Parties: Scone Race Club Ltd (Appellant) Gregory James Cottom (Respondent) Representation: Counsel: L King SC (Appellant) C A W Hart with S Mueller (Respondent)