Ah Tong v Wingecarribee Council - [2003] NSWCA 381

CITATION: Ah Tong v Wingecarribee Council [2003] NSWCA 381

HEARING DATE(S): 15/12/03

JUDGMENT DATE:
19 December 2003

JUDGMENT OF: Giles JA at 1; Ipp JA at 21; Tobias JA at 83

DECISION: In each case CA 40526/03 & CA 40527/03: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) Set aside the verdict and judgment of Dodd DCJ of 1 November 2002 and in lieu thereof enter a verdict and judgment for the claimant in the sum of $40,000. (4) Order that the opponent pay the costs of the claimant in the District Court and the costs of the appeal. (5) The opponent to be entitled to a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

CATCHWORDS: NEGLIGENCE - Claim by parents for damages for mental trauma resulting from death of son who fell down cliff at reserve maintained by opponent - Whether opponent should have installed safety fences - Whether opponent should have erected warning signs - Whether the risk of cliff edges being proximate to picnic area or bush path was obvious. ND

CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185
Francis & Ors v Lewis [2003] NSWCA 152
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
Parsons v Randwick Municipal Council [2003] NSWCA 171
Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43
Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Waverley Municipal Council v Swain (2003) Aust Torts Reports 81-694
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES :
CA 40526/03
Rosie Lucia Ah Tong (Claimant)
Wingecarribee Shire Council (Opponent)
CA 40527/03
Ronald Kelvin Ah Tong (Claimant)
Wingecarribee Shire Council (Opponent)

FILE NUMBER(S): CA 40526/03; 40527/03

COUNSEL: CA 40526/03; CA 40527/03
D E Baran (Claimants)
J E Maconachie QC/N Polin (Opponent)

SOLICITORS: CA 40526/03; CA 40527/03
Buttar Caldwell & Company (Claimants)
Phillips Fox (Opponent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6474/00; DC 6475/00

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

CA 40526/03
CA 40527/03
DC 6474/00
DC 6475/00

GILES JA
IPP JA
TOBIAS JA
Friday 19 December 2003

ROSIE LUCIA AH TONG v WINGECARRIBEE SHIRE COUNCIL

RONALD KELVIN AH TONG v WINGECARRIBEE SHIRE COUNCIL

Judgment

1 GILES JA: I have had the advantage of reading the reasons of Ipp JA in draft. Drawing upon his Honour’s reasons, with which I am in general agreement, in the following paragraphs I explain my own path to the orders his Honour proposes.

2 The claimants’ proceedings rested on a duty to take reasonable care to avoid psychiatric injury to them, see for example Tame v New South Wales

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWCA 381
Decision Date: 19 December 2003

CaseChat Overview and Summary

The dispute in *Ah Tong v Wingecarribee Council* concerned a claim for damages for mental trauma brought by parents whose son died after falling down a cliff at a reserve maintained by the defendant council. The matter was heard in the Court of Appeal of New South Wales, with Giles, Ipp, and Tobias JJA presiding.

The central legal issues before the court were whether the council had been negligent in its maintenance of the reserve. Specifically, the court had to determine whether the council ought to have installed safety fences near the cliff edge, whether warning signs should have been erected, and whether the risk posed by the proximity of the cliff edge to a picnic area and bush path was an obvious one.

The Court of Appeal allowed the appeal, overturning the District Court's verdict and judgment. The court found that the council had been negligent. It reasoned that the risk of a person falling from the cliff was not so obvious as to absolve the council of its duty of care. The council's failure to install safety barriers or adequate warning signs was considered a breach of that duty, leading to the tragic death of the plaintiffs' son.

Consequently, the Court of Appeal entered a verdict and judgment for the claimants in the sum of $40,000 and ordered that the council pay the claimants' costs in both the District Court and the appeal.

Orders

Orders of the court

In each case CA 40526/03 & CA 40527/03: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) Set aside the verdict and judgment of Dodd DCJ of 1 November 2002 and in lieu thereof enter a verdict and judgment for the claimant in the sum of $40,000. (4) Order that the opponent pay the costs of the claimant in the District Court and the costs of the appeal. (5) The opponent to be entitled to a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ah Tong v Wingecarribee Council [2003] NSWCA 381
HEARING DATE(S):	15/12/03
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	Giles JA at 1; Ipp JA at 21; Tobias JA at 83
DECISION:	In each case CA 40526/03 & CA 40527/03: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) Set aside the verdict and judgment of Dodd DCJ of 1 November 2002 and in lieu thereof enter a verdict and judgment for the claimant in the sum of $40,000. (4) Order that the opponent pay the costs of the claimant in the District Court and the costs of the appeal. (5) The opponent to be entitled to a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
CATCHWORDS:	NEGLIGENCE - Claim by parents for damages for mental trauma resulting from death of son who fell down cliff at reserve maintained by opponent - Whether opponent should have installed safety fences - Whether opponent should have erected warning signs - Whether the risk of cliff edges being proximate to picnic area or bush path was obvious. ND
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 Francis & Ors v Lewis [2003] NSWCA 152 Hoyts Pty Ltd v Burns (2003) 201 ALR 470 Parsons v Randwick Municipal Council [2003] NSWCA 171 Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43 Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverley Municipal Council v Swain (2003) Aust Torts Reports 81-694 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	CA 40526/03 Rosie Lucia Ah Tong (Claimant) Wingecarribee Shire Council (Opponent) CA 40527/03 Ronald Kelvin Ah Tong (Claimant) Wingecarribee Shire Council (Opponent)
FILE NUMBER(S):	CA 40526/03; 40527/03
COUNSEL:	CA 40526/03; CA 40527/03 D E Baran (Claimants) J E Maconachie QC/N Polin (Opponent)
SOLICITORS:	CA 40526/03; CA 40527/03 Buttar Caldwell & Company (Claimants) Phillips Fox (Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6474/00; DC 6475/00
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ