Barrett v Dubbo City Council

NEW SOUTH WALES COURT OF APPEAL

CITATION:      BARRETT v DUBBO CITY COUNCIL [2006]  NSWCA 65

FILE NUMBER(S):
40864/2004

HEARING DATE(S):               12/12/2005

DECISION DATE:     05/04/2006

PARTIES:
Patrick Joseph Barrett - Appellant
Dubbo City Council - Respondent

JUDGMENT OF:       Handley JA Ipp JA Bryson JA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          SC 20313/02

LOWER COURT JUDICIAL OFFICER:     Studdert J

COUNSEL:
I.D. Roberts SC & M. Inglis - Appellant
P.W. Taylor SC & R. Sheldon - Respondent

SOLICITORS:
Commins Hendriks - Appellant
Phillips Fox - Respondent

CATCHWORDS:
NEGLIGENCE - occupiers liability - cattle saleyards - Dubbo SC provided use of saleyards in commercial venture - appellant, local manager of pastoral house, worked with other employees drafting cattle along laneway into pens - one beast ran down laneway past pen to which employee attempted to direct it - appellant intervened to protect employee and attempted to direct beast into pen as beast returned up laneway, and beast ran against gate of pen while appellant was behind gate - gate struck appellant causing head injury - laneway not equipped with "interfering gates" meaning gates which extended across whole laneway and were held by opposite pen when fully opened, which would reduce risk to operator behind the gate - pens constructed in 1974 or 1975 without interfering gates - practice in new construction since about 1980 to design and instal interfering gates but use of non-interfering gates continued in saleyards already constructed - no practice of re-equipping existing saleyards - extensive evidence on practice in handling cattle, design and construction of yards pens and gates and safety considerations affecting design - on review of evidence, principally expert evidence on design and conduct of saleyards Studdert J found not negligent to continue to use existing equipment - on appeal, held that no error had been shown - appeal dismissed.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40864/2004

HANDLEY JA
IPP JA
BRYSON JA

5 APRIL 2006

PATRICK JOSEPH BARRETT v DUBBO CITY COUNCIL

Judgment

1. HANDLEY JA:  I agree with Bryson JA.

2. IPP JA:                 I agree with Bryson JA.

3. BRYSON JA:  Mr Barrett appeals against judgment for the defendant given by Studdert J. on 10 September 2004 (Barrett v Dubbo City Council [2004] NSWSC 832) in Mr Barrett's claim in the Common Law Division for damages for extremely severe head injuries which he suffered at the Dubbo saleyards on 20 November 1997. The grounds in the Notice of Appeal dated 4 January 2005 were as follows:

   1.            His Honour erred in concluding that the exercise of reasonable care for the safety of the plaintiff did not require the defendant to introduce interfering gates.

   2.            His Honour erred in accepting the opinion of Mr Huefner.

   3.            His Honour erred in failing to prefer the evidence of Mr Vowles to that of Mr Huefner particularly in view of the fact that Mr Huefner lacked cattle handling…