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Date: Thu, 8 Dec 2005 16:03:39 +1100 Subject: High Court of Australia - no breach in "garage sale" case
Dear Colleagues; The High Court has now handed down its decision in Neindorf v Junkovic [2005] HCA 75 (8 December 2005). The case, on appeal from the Sup Ct of SA, involved a "garage sale" (I'm not sure what they're called elsewhere - domestic junk offered on tables for neighbours and others to come and purchase) in a suburban house occupied by Ms Neindorf and an injury suffered by Ms Junkovic who tripped on an uneven piece of concrete having come in to make a purchase. I won't give a lengthy analysis - the bottom line is that by a 4-1 majority (Gleeson CJ, Hayne J, Callinan & Heydon JJ; Kirby J in dissent) the HC found that there had been no breach of the occupier's duty in not warning entrants of the unevenness in the driveway. Similarities in terms of the effect of the "obviousness" of the risk to the recent decision in Vairy. Interesting points in Kirby J's judgement include a wish (at para [76]) that he had never said what he did about "obviousness" of risk in Romeo, as ever since he says it has been taken out of context and misused; and an impassioned plea at [86] that the law of negligence in Australia is moving too far away from Scriptural principles of non-selfishness embodied in Lord Atkin's judgement in Donoghue v Stevenson. This last is a comment I must say I personally find very powerful. On a lighter note, I had a mini-competition in my Torts class this year to see who could come up with torts cases the name of which tells you something about the facts of the case. As I recall two classic examples were Burnie Port Authority v General Jones (involves a fire) and Kars v Kars (a motor vehicle negligence case). I also used this case (which we discussed when it was at the SA Full Court level). Any other ideas for similar cases?
Regards
Neil
Foster
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