Shoring in the Trenches of the Civil Liability Act

McDonald v Shoalhaven City Council [2013] NSWCA 81

In Brief

• Section 3B of the Civil Liability Act 2002 (CLA) will be strictly interpreted in determining whether a claim falls for assessment under the CLA, the Workers Compensation Act 1987 (WCA) or any other legislation, even if the duty of care arises from a derivative duty imposed by a differing legislative regime or pursuant to a cause of action which is excluded by s 3B.
• A court must properly consider all evidence put before it when making a determination as to what evidence is to be accepted or rejected.
• The statutory test requiring that the risk of harm to a person be "not insignificant" is more demanding or onerous, albeit only slightly, than the common law test that a risk of harm be "not far-fetched or fanciful".