Nepean Blue Mountains Local Health District v Starkey

[2016] NSWCA 114

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Personal injury
4. › Slip and fall
5. › Breach of duty
6. › Whether primary judge erred in failing to refer to Civil Liability Act 2002 (NSW), s 5B
7. › Whether failure to address statutory preconditions vitiated judgment
8. › Civil Liability Act 2002 (NSW), s 5B
1. Torts
2. › Negligence
3. › Duty of care
4. › Occupier's liability
5. › Content and scope of duty
6. › Whether primary judge failed to elaborate nature, content and scope of duty of care
7. › Whether duty adequately stated where plaintiff exercising reasonable care for own safety
1. Practice and Procedure
2. › Pleadings
3. › Obligation to plead by reference to Civil Liability Act 2002 (NSW)
4. › Whether outdated common law pleadings vitiate proceedings
5. › Whether failure of counsel to raise statutory provisions at trial precludes appellate challenge
1. Appeal
2. › Fact finding
3. › Appellate review of factual findings
4. › Whether findings glaringly improbable or contrary to compelling inferences
5. › Fox v Percy [2003] HCA 22

Quick Take

A primary judge's failure to expressly refer to and apply s 5B of the Civil Liability Act 2002 (NSW) does not constitute error where the only contested issue at trial was narrowly framed by the defendant's own counsel as a factual question and neither party addressed the statutory preconditions for breach. However, this is confined to the particular circumstances of the case and does not provide a general licence to ignore the CLA. Failure to determine a case in accordance with the CLA may vitiate a judgment if the failure is material to the outcome.