What happened
On 5 November 2011, Mr Wearing-Smith stood to relieve a leg cramp and reached for the balustrade to steady himself. A glass panel gave way and he fell from the balcony. Earlier inspections had identified rust, painting work had followed, and the parties agreed damages of AUD 425,000 if liability were established.
The issues
At trial, the issues included whether corroded bolts caused the failure and whether the occupiers should have investigated structural safety or restricted access. On appeal, attention focused on the evidentiary basis for those inferences and the precautions reasonably required of ordinary householders.
The court's decision
The trial judge inferred failure of corroded fixings, found breach and causation, rejected contributory negligence and awarded AUD 425,000. In Swift v Wearing-Smith [2016] NSWCA 38, the majority held that the evidence did not justify the trial court’s findings and the precautions imposed on reasonable household occupiers. It set aside the plaintiff’s judgment and substituted judgment for the defendants.
What this case shows
Failure of a safety structure did not itself prove negligence by the occupiers. The case illustrates the need to connect the evidence about the defect, earlier warnings and maintenance with precautions that were reasonable before the accident.
Why another case may differ
The 2014 liability findings did not survive appeal and should not be cited as an established rule. The appeal included a dissent, and the result does not excuse every rust or balcony defect. AUD 425,000 was the agreed conditional quantum used at trial, not a surviving damages award.
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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