Schultz v McCormack [2015] NSWCA 330

Schultz v McCormack [2015] NSWCA 330

The risk was sufficiently identified as the risk of slipping on the wet landing or steps, but it was not obvious to a reasonable person in the appellant's position because she was standing on a dry protected area, had no reason to appreciate that wind-blown rain had made the edge of the landing wet, and the lighting and circumstances did not make the wet area apparent. The unchallenged expert evidence supported that the tiles were highly slippery when wet and that the respondents, having used the tiled entrance for years and knowing wind-blown rain could wet the landing, ought to have known of the risk and warned the appellant or used matting. Their failure to take such precautions...

Jurisdiction
Australia
Judgment Date
23 October 2015
Procedural Posture
Torts Negligence Occupier's Liability Appeal From New South Wales District Court / Appeal and Cross Appeal
Outcome
Appeal allowed; cross-appeal dismissed with costs.
Legal Topics
['duty of Care' 'breach of Duty' 'obvious Risk' 'civil Liability Act 2002 (nsw)' 'contributory Negligence' 'domestic Assistance Damages']
['torts' 'negligence' "occupier's Liability" 'damages'] ['duty of Care' 'breach of Duty' 'obvious Risk' 'civil Liability Act 2002 (nsw)' 'contributory Negligence' 'domestic Assistance Damages']

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Procedural Posture

Torts Negligence Occupier's Liability Appeal From New South Wales District Court / Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in characterising the risk for the purposes of s 5B of the Civil Liability Act 2002 (NSW).' 'Whether the primary judge erred in finding that the risk encountered by the appellant was an obvious risk within s 5F of the Civil Liability Act 2002 (NSW).' 'Whether the primary judge should have found that the respondents were negligent.' 'Whether the primary judge erred in finding contributory negligence if the respondents were negligent.' "Whether the primary judge erred in assessing the appellant's domestic assistance claim."]

Ratio Decidendi

The risk was sufficiently identified as the risk of slipping on the wet landing or steps, but it was not obvious to a reasonable person in the appellant's position because she was standing on a dry protected area, had no reason to appreciate that wind-blown rain had made the edge of the landing wet, and the lighting and circumstances did not make the wet area apparent. The unchallenged expert evidence supported that the tiles were highly slippery when wet and that the respondents, having used the tiled entrance for years and knowing wind-blown rain could wet the landing, ought to have known of the risk and warned the appellant or used matting. Their failure to take such precautions...

Court Disposition

Appeal allowed; cross-appeal dismissed with costs.

Orders

  • ['Appeal allowed.' 'Verdict and judgment for the respondents entered on 23 June 2014 set aside.' 'Judgment for the appellant in the sum of $750,000 to date from 23 June 2014.' 'Cross-appeal dismissed with costs.' "Respondents to pay the appellant's costs in this court and in the court below and to have a certificate...