Barudzija v Lake Macquarie City Council

[2004] NSWCA 86

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Barudzija v. Lake Macquarie City Council [2004]  NSWCA 86

FILE NUMBER(S):
40967/03

HEARING DATE(S):            Matter dealt with in Chambers

JUDGMENT DATE: 25/03/2004

PARTIES:
Momcilo Barudzija - claimant
Lake Macquarie City Council - opponent

JUDGMENT OF:      Hodgson JA Bryson JA    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC4205/02

LOWER COURT JUDICIAL OFFICER:     Ainslie-Wallace DCJ

COUNSEL:
Not applicable

SOLICITORS:
Andrew Fegent & Company, Sydney for claimant
Crameri Lawyers, Newcastle for opponent

CATCHWORDS:
TORT - Negligence - Trip on footpath - Defective repair - Verdict for defendant - Whether leave to appeal should be granted.

LEGISLATION CITED:

DECISION:
Leave to appeal refused with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40967/03
DC   4205/02

HODGSON JA
BRYSON JA

Thursday 25 March 2004

BARUDZIJA  V.  LAKE MACQUARIE CITY COUNCIL

Judgment

1. THE COURT:  The matters which would come under consideration on appeal are special to the facts of this case and are unlikely to involve any question of legal principle, or any question in which persons other than the parties have an interest.

2. The cause of the plaintiff’s fall was that there were pieces of loose concrete on the footpath, one of which was sticking up (judgment [3]).  The plaintiff tripped and fell on the broken concrete.  The plaintiff took a piece of the concrete away, and put photographs of it in evidence (Blue 214).  The plaintiff had passed that way as he went to the shop and did not notice that there was anything wrong with the footpath.  He had walked that way on other occasions before the day of his injury and had not noticed the broken concrete (judgment [5]).

3. The trial judge found that a repair effected by the defendant in 1998 was inadequate, because a concrete fillet used to cover a variation in level between two slabs in the footpath was not successfully bonded.  However, she held that the defendant was not shown to be in breach of a duty of care, because it was not shown that the defendant should have been aware that the concrete fillet had become detached and broken up.

4. The main point sought to be agitated on an appeal is to the effect that her Honour did not address the question whether the defendant was in breach of a duty of care by reason of the defective repair job in 1998, because it was then foreseeable that the concrete fillet would become detached and break up, causing a tripping hazard.

5. In our opinion, although her Honour did not explicitly address that question, it is implicit in her decision that the use of a method of repair which was not satisfactory as a permanent solution did not amount to a breach of duty, where it was associated with an appropriate program of inspections, ongoing repairs and progressive application of more permanent solutions to such problems.

6. Accordingly, we do not think there is such doubt concerning the decision as would justify the grant of leave to appeal.

7. Although the findings on damages were not carried to completion, they went far enough to show that the plaintiff is very unlikely to recover any significant amount of damages, as most of his complaints were closely related to injuries which had been earlier compensated in other litigation.

8. Accordingly, we order that leave to appeal be refused with costs.

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LAST UPDATED:     25/03/2004