Barrett v Dubbo City Council - [2004] NSWSC 832

CITATION: Barrett v Dubbo City Council [2004] NSWSC 832

HEARING DATE(S): 9-13 February, 29-30 March, 21 June 2004

JUDGMENT DATE:
10 September 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Studdert J

DECISION: Judgment for the defendant. Costs are reserved; the cause is to be relisted for submissions as to costs on a date to be arranged with my associate within the next twenty-one days.

CASES CITED: Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479
Commonwealth of Australia v McLean (unreported, NSWCA, 31 December 1996)
Ho v Powell (2001) 51 NSWLR 572
Jones v Bartlett (2000) 205 CLR 166
Jones v Dunkel (1959) 101 CLR 298
Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES :
Patrick Joseph Barrett (Plaintiff)
Dubbo City Council (Defendant)

FILE NUMBER(S): SC 20313/02

COUNSEL: M. Cranitch SC/M. Inglis (Plaintiff)
P. Taylor SC/R. Sheldon (Defendant)

SOLICITORS: Commins Hendriks (Plaintiff)
Phillips Fox (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 10 September 2004

20313/02 PATRICK JOSEPH BARRETT v DUBBO CITY COUNCIL
JUDGMENT

1 HIS HONOUR: The plaintiff, Patrick Joseph Barrett, brings these proceedings against the Dubbo City Council, claiming damages for negligence in respect of injury sustained at the Dubbo saleyards on 20 November 1997. The defendant denies any negligence in the circumstances giving rise to this claim and, alternatively, it raises the defence of contributory negligence.

2 At the outset it is necessary to determine how the plaintiff met with his injuries.

Circumstances in which the plaintiff was injured

3 The plaintiff was appointed as manager of Elders Dubbo branch in April 1989 and he held that position as at 20 November 1997. On that date he attended the Dubbo saleyards where sales of stock took place on Mondays and Thursdays. The plaintiff had not participated in the ballot for pens for that particular sale day because when the ballot took place Elders had no cattle for sale. However, the plaintiff said (T 10) that a mob of “fifty-one or fifty-three” head of cattle came in late from a client whose property was south of White Cliffs, and these were to be sold after the main cattle sales had occurred. The plaintiff recalls walking to the pen where those cattle were being held, but he said he remembers nothing after that until he regained consciousness in Dubbo hospital.

4 I observe at this point that the plaintiff impressed me as a completely honest witness. I accept that he has no recollection of his accident and I am satisfied that the reason for this is that he sustained injury to his head at the time of it. How this occurred requires attention to the evidence of two other Elders’ employees, Mr Barlow and Mr Prentice.

5 I propose before doing so to describe the area where the accident occurred. An aerial photo of the saleyards became Exhibit A and the approximate location of the accident…

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: [2004] NSWSC 832
Decision Date: 10 September 2004

CaseChat Overview and Summary

Patrick Joseph Barrett commenced proceedings against Dubbo City Council for damages resulting from injuries sustained at the Dubbo saleyards on 20 November 1997. The defendant denied any negligence and raised the defence of contributory negligence. The court had to determine whether the defendant had a duty of care to provide gates that interfered with the opposite side of the lane, and if the defendant's failure to do so constituted negligence.

The court found that the plaintiff was injured when a beast struck an open gate operated by Mr Prentice, which forced the gate back against the plaintiff. The court concluded that the plaintiff approached the gate with the intention to control the gate and cause the beast to change direction. The court examined whether the defendant should have provided interfering gates or an overhead draft. It found that it was possible to introduce interfering gates in 1995 when new construction work was undertaken, but the court did not find that the exercise of reasonable care required the defendant to carry out these modifications. The court held that the Dubbo City Council was not negligent in failing to provide interfering gates, and judgment was entered in favour of the defendant.

Costs were reserved, and the cause was to be relisted for submissions as to costs on a date to be arranged with the judge's associate within the next twenty-one days.

Orders