Lloyd v Thornbury [2019] NSWCA 154 (25 June 2019) (Meagher JA at [1]; Gleeson JA at [2]; White JA at [183].) - 13wentworthselbornechambers
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Lloyd v Thornbury [2019] NSWCA 154 (25 June 2019) (Meagher JA at [1]; Gleeson JA at [2]; White JA at [183].)


Catchwords:


TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury

TORTS – negligence – Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in identification of risk of harm – reasonable precautions to prevent risk of harm – whether landlord should have ensured hole was backfilled or fenced

APPEAL AND NEW TRIAL – where absence of finding of primary fact – whether substantial miscarriage justifying retrial – no entitlement to retrial where absent finding not determinative of breach

TORTS – negligence – factual causation – Civil Liability Act 2002 (NSW), s 5D – whether primary judge erred in finding causation made out

CIVIL PROCEDURE – Court of Appeal – notice of contention – new ground raised on appeal – where other party objects – whether new ground could possibly have been met at trial

TORTS – Negligence – contributory negligence and apportionment – Civil Liability Act 2002 (NSW), ss 5B, 5R and 5S – whether primary judge erred in finding tenant contributorily negligent – whether primary judge erred in assessing extent of tenant’s contribution – causal significance of tenant’s own negligence

DAMAGES – measure and remoteness of damages in actions for tort – economic loss – whether primary judge erred in assessment of past economic loss and residual earning capacity – significance to findings of future economic loss – Civil Liability Act 2002 (NSW), s 13 – whether primary judge adequately engaged with employment history evidence – where plaintiff suffered from pre-existing injuries – whether primary judge adequately engaged with medical evidence to determine extent of exacerbation – whether allowance for future medical expenses was supported by evidence

DAMAGES – measure and remoteness of damages in actions for tort – non-economic loss – Civil Liability Act 2002 (NSW), s 16 – whether primary judge erred in assessment of the degree of severity of non-economic loss – significance of pre-existing injuries – whether primary judge’s assessment susceptible to appellate review

APPEAL AND NEW TRIAL – new trial on particular grounds – whether retrial should be ordered on the assessment of damages – where reliability of evidence in issue