Guides Australia Inc v McMartin [2006] NSWCA 20

Guides Australia Inc v McMartin [2006] NSWCA 20

The appellant, as occupier, breached its duty by failing to eliminate a concealed, hazardous depression, amounting to negligence causing injury to the respondent. The risk was not obvious, the respondent exercised reasonable care, and there was no contributory negligence. The trial judge's assessment of evidence and damages was unimpeachable. The Bullock costs order in respect of the Council was not properly founded, as the necessary conduct of the unsuccessful defendant was absent.

Jurisdiction
Australia
Judgment Date
16 February 2006
Procedural Posture
Civil Appeal / Appeal Decision From District Court
Outcome
Appeal allowed in part; otherwise dismissed.
Legal Topics
['negligence' 'duty of Care' "occupiers' Liability" 'assessment of Damages' 'civil Liability Act 2002' 'forensic Advantage' 'obvious Risk' 'contributory Negligence']
['tort Law' 'personal Injury'] ['negligence' 'duty of Care' "occupiers' Liability" 'assessment of Damages' 'civil Liability Act 2002' 'forensic Advantage' 'obvious Risk' 'contributory Negligence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal / Appeal Decision From District Court

Legal Issues

  1. 1 ['Whether the appellant breached its duty of care as occupier of premises resulting in injury to the respondent' 'Whether the respondent was guilty of contributory negligence' 'Whether the trial judge misused forensic advantage or improperly assessed evidence' 'Whether the damages awarded were appropriate and in compliance with relevant statutory provisions' 'Appropriateness of a Bullock order on costs']

Ratio Decidendi

The appellant, as occupier, breached its duty by failing to eliminate a concealed, hazardous depression, amounting to negligence causing injury to the respondent. The risk was not obvious, the respondent exercised reasonable care, and there was no contributory negligence. The trial judge's assessment of evidence and damages was unimpeachable. The Bullock costs order in respect of the Council was not properly founded, as the necessary conduct of the unsuccessful defendant was absent.

Court Disposition

Appeal allowed in part; otherwise dismissed.

Orders

  • ['Order that the appellant indemnify the respondent in relation to costs paid by the respondent to the Greater Taree City Council set aside.' 'Appeal otherwise dismissed.' "Appellant to pay ninety five per cent of the respondent's costs of the appeal."]