Hawkesbury Sports Council v Martin [2019] NSWCA 76

Hawkesbury Sports Council v Martin [2019] NSWCA 76

The majority held that the challenged parts of Mr Grieve's evidence about visual perception were inadmissible because his reports did not establish that those opinions were based on specialised knowledge derived from his training, study or experience. On the remaining evidence, including the photographic evidence, the presence of the concrete blocks, timber posts and cable was such that a person taking reasonable care could not attempt to pass between the blocks without noticing the posts and cable. The risk of tripping on the cable was obvious and was not established to be not insignificant, so a reasonable person in the appellants' position was not required to take the precaution of...

Jurisdiction
Australia
Judgment Date
16 April 2019
Procedural Posture
Civil Appeal in Negligence Proceedings / Appeal and Cross Appeal From the District Court of NSW
Outcome
Appeal allowed; cross appeal dismissed.
Legal Topics
['breach of Duty' 'obvious Risk' 'expert Opinion Evidence' 'photographic Evidence' 'gratuitous Domestic Assistance' 'contributory Negligence']
['torts' 'negligence' 'evidence' 'damages' 'civil Procedure'] ['breach of Duty' 'obvious Risk' 'expert Opinion Evidence' 'photographic Evidence' 'gratuitous Domestic Assistance' 'contributory Negligence']

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Procedural Posture

Civil Appeal in Negligence Proceedings / Appeal and Cross Appeal From the District Court of NSW

Legal Issues

  1. 1 ["Whether the primary judge erred in admitting parts of Mr Grieve's expert reports concerning visual perception under s 79 of the Evidence Act 1995 (NSW)." 'Whether installation of concrete blocks with retention of a steel cable created a risk of injury by tripping against which the appellants were required to take precautions.' 'Whether the appellants breached their duty of care by failing to remove the cable.' 'Whether damages for past and future gratuitous domestic assistance were properly awarded where the provider was receiving a carer payment.' "Whether the respondent's cross appeal against the finding of contributory negligence should be upheld."]

Ratio Decidendi

The majority held that the challenged parts of Mr Grieve's evidence about visual perception were inadmissible because his reports did not establish that those opinions were based on specialised knowledge derived from his training, study or experience. On the remaining evidence, including the photographic evidence, the presence of the concrete blocks, timber posts and cable was such that a person taking reasonable care could not attempt to pass between the blocks without noticing the posts and cable. The risk of tripping on the cable was obvious and was not established to be not insignificant, so a reasonable person in the appellants' position was not required to take the precaution of...

Court Disposition

Appeal allowed; cross appeal dismissed.

Orders

  • ['Appeal allowed.' 'Set aside judgment and orders of the District Court made on 1 July 2017 and in lieu thereof order that the proceedings be dismissed.' "The respondent pay the appellants' costs at first instance and on appeal, and to have a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the...