Negligence – need to deal with each suggested precaution by reference to s. 5B(1) July 3, 2018
- NEGLIGENCE – occupier’s liability – customer trips and falls in appellant’s premises while entering a children’s play area – play area had raised shock-absorbent surface – primary judge found failure to warn and failure to make surface of play area level with remainder of premises were breaches of duty which caused the injury – findings under ss 5B and 5D of Civil Liability Act 2002 (NSW) set aside – appeal allowed and judgment entered for appellant
39. The respondent submitted that shortly afterwards in his Honour’s reasons his Honour turned to s 5B(2), and asked the Court to read the reasons charitably, such that the finding as to s 5B(1)(c) anticipated and took into account what his Honour later found as to s 5B(2). The reasons should be read bearing in mind that they were given orally. However, on a fair reading, the primary judge proceeded on a basis which did not comply with the requirement of s 5B(2) to consider those four matters. There is no suggestion that his Honour was proleptically bringing into play the matters in s 5B(2). Contrary to what he said, it was not “perhaps desirable” to identify those matters “which might be described as precautions” in order to apply s 5B. It was necessary to identify each of them, and to apply s 5B to them. And there is no way in which the reasons may be read to disclose separate attention to s 5B(1)(c) by reference to each individual precaution, rather than collectively.