Agresta v Agresta

[2010] NSWCA 330

NSW Court of Appeal

Built by Barristers,
For Australian Law.

Occupiers may breach their duty of care by permitting or requesting an inexperienced person to operate an unguarded dangerous machine in a setting where distraction is likely. In such a case, whether a safer replacement machine was available is beside the point, because the reasonable alternative of not allowing that person to use the machine was readily available.
A plaintiff's awareness of a risk is not an answer to negligence where safe operation demands continuous concentration and a lapse is a real possibility, even for someone trying to be careful. Prior accident-free use by experienced operators does not show that it was reasonable to allow an inexperienced person to operate the machine.
On the facts, the plaintiff's hand dropping into the machine when she turned to answer a family member was mere momentary inattention, not contributory negligence, applying [name withheld] v Australian Iron and Steel Pty Ltd. Under s 15(2) of the Civil Liability Act 2002 (NSW), awards for gratuitous domestic assistance must be confined to the reasonable need shown by the evidence.