DRINKWATER & ORS v HOWARTH [2006] NSWCA 222

DRINKWATER & ORS v HOWARTH [2006] NSWCA 222

The appeal was dismissed because even if s5B of the Civil Liability Act 2002 (NSW) applies, there is no material difference in outcome between the statutory test ('not insignificant') and the common law test ('not far-fetched or fanciful'), and the risk to the plaintiff was clearly not insignificant.

Jurisdiction
Australia
Judgment Date
03 August 2006
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
['duty of Care' 'civil Liability Act 2002 (nsw) S5 B' 'assessment of Risk']
['negligence'] ['duty of Care' 'civil Liability Act 2002 (nsw) S5 B' 'assessment of Risk']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether trial judge erred by not expressly applying Civil Liability Act 2002 (NSW) s5B in assessing breach of duty' "Difference between 'not far-fetched or fanciful' and 'not insignificant' risk under s 5B" 'Application of Civil Liability Act 2002 (NSW) ss 3B, 5B to deliberate acts']

Ratio Decidendi

The appeal was dismissed because even if s5B of the Civil Liability Act 2002 (NSW) applies, there is no material difference in outcome between the statutory test ('not insignificant') and the common law test ('not far-fetched or fanciful'), and the risk to the plaintiff was clearly not insignificant.

Court Disposition

Appeal dismissed

Orders

  • ["Appellants to pay the respondent's costs of the appeal on a party and party basis up until and including 4 April 2006 and on an indemnity basis from 5 April 2006." 'Liberty to the appellants to approach the Court within today or tomorrow if an issue is to be raised as to service of the offer of compromise.']