CLA: “not insignificant” more demanding than “not far-fetched or fanciful”

McDonald v Shoalhaven City Council [2013] NSWCA 81

CATCHWORDS: TORTS – NEGLIGENCE – STATUTES AND REGULATIONS – BREACH  – CIVIL LIABILITY ACT 2002, 3B (f) – DUTY OF CARE – EMPLOYMENT – DERIVATIVE DUTY TO RESCUER – CAUSATION – FAILURE TO CONSIDER RELEVANT EVIDENCE

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was injured whilst assisting an employee of the respondent out of a trench which had collapsed. The appellant was not an employee of the respondent.

The trial judge held that the respondent owed the appellant a duty of care but found that the duty had not been breached: Civil Liability Act 2002, s 5B.

On appeal to this Court, four issues arose for determination:

(1) Whether the appellant’s claim was governed by the Civil Liability Act 2002.

(2) Whether the trial judge erred in failing to consider that the duty owed to the appellant was in the nature of the duty owed by an employer to an employee.

(3) Whether the trial judge failed to consider all of the evidence relating to the collapse of the trench and therefore fell into error.

(4) Whether the trial judge erred in applying the term “not insignificant” in the Civil Liability Act 2002, s 5(b)(1)(b) as if it bore the same meaning as the word “significant“.

 

The Court allowed the appeal.

Held per Beazley P (Ward JA and Simpson J agreeing):

In respect of (1):

i The Civil Liability Act 2002, s 3B(1)(f) must be interpreted literally even though a literal construction may produce anomalies: [10]. The appellant’s claim was governed by the Civil Liability Act 2002.

Applied: State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463.

In respect of (2):

i The respondent owed a duty to take reasonable care to avoid injury to those individuals whom it was reasonably foreseeable would render assistance to employees of the respondent who were in a position of danger brought about by the respondent’s alleged negligence: [15]-[16].

Considered: Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349.

Applied: Chapman v Hearse [1961] HCA 46; 106 CLR 112.

In respect of (3):

i The trial judge failed to determine whether he accepted the appellant’s evidence and to consider the respondent’s evidence in that light. Accordingly, the trial judge erred by failing to properly weigh all of the evidence and base his determination on his assessment of the evidence: [62]-[63].

In respect of (4):

i The “not insignificant” test is more demanding, but not by very much, than a test that required a risk to be “not far-fetched or fanciful“: [67]. This ground of appeal became redundant due to the nature of the disposition of the appeal: [68].

Considered: Shaw v Thomas [2010] NSWCA 169; Civil Liability Act 2002, 5b(1)(b).

David Cormack – Brisbane Barrister

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