Taouk v Waste Recycling & Processing Service of NSW & Anor

[2003] NSWCA 273

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Occupier's liability
4. › Breach of duty of care
5. › Commercial waste disposal facility
6. › Whether occupier required to devise 'watertight' system to prevent entrant's own foolish conduct
7. › Whether occupier entitled to assume entrant would take reasonable care for own safety
1. Tort
2. › Negligence
3. › Occupier's liability
4. › Content of duty of care
5. › Independent contractor injured on premises
6. › Whether occupier breached duty by not inspecting loads at weighbridge
7. › Whether existing safety system constituted reasonable response to foreseeable risk
1. Evidence
2. › Failure to call witness
3. › Jones v Dunkel inference
4. › Whether inference available where explanation given for not calling witness
5. › Whether inference available where uncalled witness's evidence would not assist party seeking inference
1. Appeal
2. › Fresh evidence on appeal
3. › Application to adduce fresh evidence
4. › Whether application properly characterised as fresh evidence or complaint about conduct of trial
5. › R v Birks (1990) 19 NSWLR 677
6. › Supreme Court Act 1970

Quick Take

An occupier of a commercial waste disposal facility who has devised a reasonable system to deal with foreseeable risks is not required to devise a 'watertight' system that would prevent an experienced independent contractor from engaging in foolish conduct. The occupier is entitled to assume that such a contractor will take reasonable care for his own safety and is not in breach of duty merely because the system did not prevent the contractor from ignoring directions and attempting to unload unmanageable objects alone.