What happened
A visitor was injured on 4 September 2010 while walking down the driveway to a house. The long-term occupier had reapplied a concrete sealer whose container warned about use on slopes and reduced slip resistance.
The issues
The appeal challenged prospective foreseeability, negligent resealing and the trial judge's preference between conflicting surface-testing reports. It also raised whether characterising negligence as a positive act avoided the Civil Liability Act's precautions analysis.
The court's decision
The appeal was dismissed with costs, leaving the $121,560 damages judgment intact. The majority held that the warnings and resealing evidence supported liability and that the judge could rationally choose between expert reports tendered without cross-examination. It was unnecessary to decide whether a handrail was required.
Understanding the figures
The historical AUD damages judgment upheld was $121,560. Judgments against both the occupier and the contractor concerned the same loss and did not represent double recovery. Appeal costs were separate.
What this case shows
An accident-free history is relevant without being conclusive. The decision also shows the difficulty of overturning a rational choice between experts when the parties left their disagreements untested at trial.
Why another case may differ
This appeal concerned the Civil Liability Act 2002 (NSW) and a 2010 accident. Quantum was not challenged and the causation challenge was limited, so surface-test readings alone should not be treated as establishing causation in every case. The majority did not finally resolve the general application of s 5B to positive acts.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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