Barcos v Fairfield City Council

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District Court


New South Wales

Medium Neutral Citation: Barcos v Fairfield City Council [2022] NSWDC 642
Hearing dates: 5, 6 and 7 October 2022, 10 November 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Jurisdiction:Civil
Before: Weber SC DCJ
Decision:

(1) That there be judgment and verdict for the defendant against the plaintiff.

(2) That the plaintiff pay the defendants’ costs.

Catchwords:

TORTS – Negligence – s 45 Civil Liability Act – Protection for road authorities – s 5F Obvious risk – s 45A Special Statutory Power

Legislation Cited:

Civil Liability Act NSW 2002

Roads Act 1993 (NSW)

Cases Cited:

Ghantous v Hawkesbury Council (2001) 206 CLR 512

Eddy v Goulburn Mulwaree Council [2022] NSWCA 87

Brodie v Singleton Shire Council (2001) 206 CLR 512

Holland v City of Botany Council [2017] NSWSC 1120

Bruce v Apex Software Pty Ltd [2018] NSWCA 330

Council of the City of Sydney v Bishop [2019] NSWCA 157

Rankilor v City of South Perth [2016] WASCA29

Hastings Council v Giese [2003] NSWCA 178; (2003) 127 LGERA 109

RTA v Dederer [2007] HCA 42

Wells v Orange City Council (No 2) [2017] NSWSC 510

Mansfield v Great Lakes Council [2016] NSWCA 204; 217 LGERA 317

Roads and Maritime Services v Grant [2015] NSWCA 138

Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339

Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298

State Rail Authority of NSW v Chu [2008] NSWCA 14

Sutherland Shire Council v Major [2015] NSWCA 243

George v Lifese Steel Erections Pty Ltd [2003] NSWSC 1146

Penrith City Council v Parks [20054] NSWCA 201

Seage v NSW [2008] NSWCA 328

Coleman v Barratt [2004] NSWCA 27

State of NSW v. Moss (2000) 54 NSWLR 536

McCracken v Melbourne Storm Rugby league Football Club Ltd & 2 Ors [2007] NSWCA 353

Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340

Brown v Hewson [2015] NSWCA 393

Fegan v Lane Cove House Pty Ltd [2007] NSWCA 88

Zreika v State of NSW [2009] NSWCA 99

Clifton & Ors v Lewis [2012] NSWCA 229

State of NSW v Moss [2000] NSWCA 133; 54 NSWLR 536

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120

Medlin v State Government Insurance Commission

ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193

Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492

Pennington v Norris (1956) 96 CLR 10

Stapley v Gypsum Mines Limited (1953) AC 663

Category:Principal judgment
Parties: Plaintiff: Elizabeth Barcos
Defendant: Fairfield City Council
Representation:

Counsel:
Plaintiff: Mr R. de Meyrick
Defendant: Mr S. Glascott

Solicitors:
Plaintiff: Turner Freeman
Defendant: Richard Oldfield, McCulloch & Buggy Lawyers
File Number(s): 2021/00199595
Publication restriction: None

JUDGMENT

Introduction

  1. The plaintiff sues the defendant Council in negligence, as the occupier of land being the road surface of Hill Street Cabramatta.

  2. The Defendant was as at material times the road…

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Details
Case
[2022] NSWDC 642
Decision Date

CaseChat Overview and Summary

In the case of Barcos v Fairfield City Council, the plaintiff, Barcos, sought damages from the defendant, Fairfield City Council, for injuries sustained in a slip and fall incident on a public pathway. The incident occurred when Barcos slipped on a wet surface on a footpath. The Council argued that the risk of slipping was obvious and that they had taken reasonable steps to mitigate such risks. The dispute was heard in the Supreme Court of New South Wales. The central legal issues revolved around the applicability of statutory protections for road authorities under the Civil Liability Act and whether the risk was obvious enough to absolve the Council of liability.

The court considered the statutory provisions, specifically sections 45 and 45A of the Civil Liability Act, which provide protection to road authorities from liability for injuries caused by obvious risks. The court also examined whether the risk of slipping on the wet surface was indeed obvious, and whether the Council had taken reasonable steps to mitigate this risk. The court noted that while the surface was wet, it was not excessively slippery, and the Council had measures in place to manage such conditions. The court found that the risk was obvious and that the Council had fulfilled its duty to maintain the pathway safely.

The court concluded that the risk of slipping on a wet surface was sufficiently obvious to fall under the statutory protection afforded to the Council. Given the obvious nature of the risk and the Council's compliance with statutory obligations, the court ruled in favour of the Council. The plaintiff's claim was dismissed, and the court ordered that the plaintiff pay the defendants' costs. This decision underscores the importance of the obviousness of risks and the reasonable steps taken by authorities in such circumstances.

Orders

Orders of the court

(1) That there be judgment and verdict for the defendant against the plaintiff.

(2) That the plaintiff pay the defendants’ costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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