Bunnings Group Ltd v Giudice [2018] NSWCA 144

Bunnings Group Ltd v Giudice [2018] NSWCA 144

The appeal was allowed because the primary judge failed to apply s 5B of the Civil Liability Act 2002 (NSW) correctly—failing to assess whether the particular risk was 'not insignificant' and whether a reasonable person in Bunnings' position would have taken each of the specific precautions proposed. The finding of causation regarding warning failures did not positively establish that Ms Giudice would have avoided injury if warned. The evidence did not establish breach or causation as required by the Act.

Parties
Appellant: Bunnings Group Ltd; Respondent: Antonietta Giudice
Jurisdiction
Australia
Judgment Date
03 July 2018
Procedural Posture
Appeal / Court of Appeal Decision on Appeal From District Court Judgment
Outcome
Appeal allowed; orders of the District Court set aside; proceedings dismissed with costs against Ms Giudice.
Legal Topics
Negligence, Occupiers' Liability, Civil Liability Act 2002 (nsw), Causation, Breach of Duty
Tort Law Negligence Occupiers' Liability Civil Liability Act 2002 (nsw) Causation Breach of Duty

Case Brief

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Parties

Bunnings Group Ltd

Appellant

Antonietta Giudice

Respondent

Procedural Posture

Appeal / Court of Appeal Decision on Appeal From District Court Judgment

Legal Issues

  1. 1 Whether Bunnings Group Ltd breached its duty of care to Ms Giudice under the Civil Liability Act 2002 (NSW) by failing to warn or modify the raised surface in the play area, thereby causing her injury.
  2. 2 Whether the requirements of breach and causation under ss 5B and 5D of the Civil Liability Act 2002 (NSW) were established.

Ratio Decidendi

The appeal was allowed because the primary judge failed to apply s 5B of the Civil Liability Act 2002 (NSW) correctly—failing to assess whether the particular risk was 'not insignificant' and whether a reasonable person in Bunnings' position would have taken each of the specific precautions proposed. The finding of causation regarding warning failures did not positively establish that Ms Giudice would have avoided injury if warned. The evidence did not establish breach or causation as required by the Act.

Court Disposition

Appeal allowed; orders of the District Court set aside; proceedings dismissed with costs against Ms Giudice.

Orders

  • Appeal allowed with costs.
  • Set aside orders 1 and 2 made on 3 November 2017, and in lieu thereof order that the proceedings be dismissed, with the plaintiff to pay the defendant's costs.