Jovic v Lamont

[2007] NSWCA 47

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Essentials of action for negligence
3. › Reasonable foreseeability
4. › Whether injury sustained by volunteer inspecting nitrous oxide bottle on motorcycle was reasonably foreseeable when bottle exploded
5. › Whether bottle inherently dangerous
6. › Whether reasonable person should have appreciated rattling could cause explosive failure
1. Appeal
2. › Appeal from District Court to Court of Appeal
3. › Nature of appeal by rehearing
4. › Correction of error
5. › Whether point not taken below able to be argued on appeal
6. › Whether failure to establish element of cause of action may be raised on appeal
7. › District Court Act 1973, s 127(1)
8. › Supreme Court Act 1970, s 75A
1. Practice and Procedure
2. › Trials
3. › Confining of issues at trial
4. › Whether election made to confine issues at trial
5. › Whether exchange between judge and counsel constituted clear election to confine issues
1. Evidence
2. › Jones v Dunkel inferences
3. › Role of inferences drawn from failure to call witnesses
4. › Whether all witnesses to disputed incident need be called

Quick Take

A reasonable person would not appreciate that the rattling of a pressurised gas bottle in its mounting could cause explosive failure, and therefore a motorcycle rider who permitted a volunteer to inspect a rattling nitrous oxide bottle was not negligent when the bottle exploded. A defendant may argue on appeal that the plaintiff's evidence did not establish a necessary element of the cause of action, even where the point was not taken at trial, because this is not a new 'point' but a contention of inadequacy in the plaintiff's case. The limited scope of topics addressed in final submissions is not of great assistance in determining whether issues at trial were confined.