Coles Supermarkets Australia Pty Ltd v Tormey

[2009] NSWCA 135

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Duty of care
4. › Occupier's liability
5. › Duty to protect against acts of third parties
6. › Whether occupier knew of activities creating risk of injury
7. › Whether knowledge of first incident sufficient to give rise to duty to intervene
1. Evidence
2. › Failure to call witnesses
3. › Jones v Dunkel inference
4. › Three conditions for application
5. › Whether inference available where no evidence that employees were present to observe incident
6. › Whether rule fills gaps in evidence or merely strengthens existing inferences
1. Appeal and New Trial
2. › Appeal by way of rehearing
3. › Law applicable at time of appeal
4. › Where change in law after trial subsequently reversed by statute prior to hearing of appeal
5. › Civil Liability Act 2002 (NSW), s 15(3)
6. › Civil Liability Legislation Amendment Act 2008 (NSW)

Quick Take

An occupier's duty to protect customers from the conduct of third parties on the premises requires proof that the occupier knew of activities that posed a foreseeable risk of harm; knowledge of boisterous but non-dangerous behaviour is insufficient. The Jones v Dunkel inference cannot be used to fill evidentiary gaps — it only strengthens inferences already arising from the opposing party's evidence. On appeal by way of rehearing, where a statutory amendment reverses an intervening appellate decision, the amending statute governs and the cross-appellant cannot rely on the reversed decision.