Bader v Jelic [2011] NSWCA 255

Bader v Jelic [2011] NSWCA 255

The primary judge's conclusions could not stand because the Civil Liability Act 2002 was not satisfactorily addressed and a significant finding about affixing visual identification to the window went beyond the case advanced. On reconsideration, although the risk was foreseeable and not insignificant, the respondent did not establish that a reasonable person in the appellants' position would have lowered the blind over the window: the probability of serious accident was low, the likely seriousness of harm would not necessarily have been appreciated because the appellants were not shown to know the glass was not safety glass, and the mere fact that the premises could have been made safer...

Jurisdiction
Australia
Judgment Date
31 August 2011
Procedural Posture
Civil Appeal in Negligence Proceedings / Appeal From District Court Judgment
Outcome
Appeal allowed.
Legal Topics
['fall Into Plate Glass Window at Residential Premises' 'breach of Duty Under Civil Liability Act 2002' 'foreseeable Risk and Reasonable Precautions' 'accident Free History' 'causation']
['torts' 'negligence' "occupiers' Liability"] ['fall Into Plate Glass Window at Residential Premises' 'breach of Duty Under Civil Liability Act 2002' 'foreseeable Risk and Reasonable Precautions' 'accident Free History' 'causation']

Case Brief

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Procedural Posture

Civil Appeal in Negligence Proceedings / Appeal From District Court Judgment

Legal Issues

  1. 1 ['Whether the primary judge failed properly to apply the Civil Liability Act 2002 in determining negligence.' "Whether a reasonable person in the appellants' position would have taken the precaution of lowering the blind over the plate glass window to ensure it was not mistaken for a door." "What significance should be given to the history of no accidents at the premises before the respondent's accident." "Whether any negligence by the appellants caused the respondent's accident and injuries."]

Ratio Decidendi

The primary judge's conclusions could not stand because the Civil Liability Act 2002 was not satisfactorily addressed and a significant finding about affixing visual identification to the window went beyond the case advanced. On reconsideration, although the risk was foreseeable and not insignificant, the respondent did not establish that a reasonable person in the appellants' position would have lowered the blind over the window: the probability of serious accident was low, the likely seriousness of harm would not necessarily have been appreciated because the appellants were not shown to know the glass was not safety glass, and the mere fact that the premises could have been made safer...

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Judgment entered and orders made at first instance set aside.' 'Judgment in the proceedings for the appellants.' 'Order the respondent to pay the costs of the appellants of the proceedings at first instance and on appeal.' "The respondent to have a certificate under the Suitors' Fund Act 1951, if...