Judges’ error jeopardises a fair settlement – Swift v Wearing-Smith appeal upheld

Date: May 12, 2016

Accident compensation damages – originally awarded last year – have been overturned on appeal.

Swift v Wearing-Smith [2016] NSWCA 38 has seen the appeal upheld in the case of  a balcony which collapsed, injuring a man.  Defendants (soon to be appellants) Anthony and Kim Swift had purchased a residential property in 2003. Their building inspection report revealed corrosion on the metal lugs and posts of the balustrade of the first floor balcony. The building inspected urged rust proofing and for the balcony to be repaired, however he didn’t file his recommendations under the issues and safety concerns sections of his report.

On November 5 2011, plaintiff Peter Wearing-Smith was at the property enjoying a birthday party when a framed glass panel on the balcony gave way, causing him to fall one storey. The District Court of New South Wales found in his favour when he brought proceedings against the defendants. The issues of the tort were what caused the glass panel to give way, whether the plaintiff had a duty of care and whether there was contributory negligence. His Honour found the version of events given by the first defendant and his witness were dramatised and unreliable.

A civil engineer gave evidence that the bolt holding the glass panel was allowed to corrode until they snapped when pushed by the plaintiff. It was found that the defendants failed to take reasonable steps to either rectify or address the defect. They failed to isolate the balcony from guest access

This case was a tort over the negligent construction of a balustrade which resulted in a guest falling from a first floor verandah. Proceedings were brought against the owners of the premises.

An appeal by the respondents resulted in a ruling in favour of the appellants.

The defendants appealed on grounds including evidentiary issues. They also contested their alleged duty of care breach. The Court of Appeal allowed the appeal 2:1 because the trial judge erred in rejecting certain evidence from the defendants.

The plaintiff was also found to have leaned on the glass with too much force. Initially the plaintiff was awarded damages in the sum of $425,000 plus costs. This award was set aside by the Court of Appeal of the Supreme Court of New South Wales, meaning the injured man was on March 10 2016 ordered to pay the appellants’ trial costs – as well as the costs of the appeal.

When you are injured and owed compensation, don’t let an appeal based on mistakes end up hurting you. Contact the experienced accident compensation and asbestos lawyers at Gerard Malouf and Partners. 

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.