Bader v Jelic [2011] NSWCA 255

Macfarlan JA:

24 Whilst it is not strictly necessary for a judge to mention the provisions of the CL Act if the judge nevertheless addresses the requirements of that Act (see Laresu Pty Ltd v Clark [2010] NSWCA 180; (2010) Aust Torts Reports [82-068] at [41] – [42]), it is highly desirable that express reference be made to the provisions of the CL Act . Doing this should ensure that the judge properly addresses the matters that the CL Act requires to be addressed and does so in a fashion that facilitates the parties’ understanding of the judgment and an appellate court’s disposition of an appeal from the judgment.

25. …For example, the primary judge expressed at [41] the view that the relevant risk was not “a remote or a fanciful risk”, which probably satisfies the requirement of s 5B(1)(b) that the risk be “not insignificant” but his Honour did not (at least explicitly) assess “the probability that the harm would occur if care were not taken”, that being the factor stated in s 5B(2)(a). Nor did his Honour (at least explicitly) consider the factor stated in s 5B(2)(b), that is, “the likely seriousness of the harm”.

33. As to s 5B(2)(a), that is, “the probability that the harm would occur if care were not taken”, it is of significance that, according to Mr Bader’s evidence, no accident had occurred in the five years prior to Mr Jelic’s accident. …

34. As pointed out in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, “the weight that will attach to an accident-free history involves a question of fact to be determined in the light of all the relevant circumstances” (at 309). In my view the accident-free history of five years preceding Mr Jelic’s accident is of some significance in assessing whether a reasonable person in the position of the appellants would (at the date of Mr Jelic’s accident) have regarded it as necessary to have the blind pulled down over the window.

40. As to s 5B(2)(d) CL Act , it can be said that there was some “social utility of the activity that creates the risk of harm” as having the window, and the view beyond, unobscured by a blind would no doubt usually be preferable from an aesthetic point of view to a cloaking of the window.

43. The following oft-quoted observations that Gleeson CJ made in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 are pertinent to the present case:

“There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense” (at [23]).

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