CATCHWORDS:
TORT - Duty of care - Where plaintiff tripped on slightly raised paver - Where paver was in a footpath in a private area owned by the Council - Whether trippng hazard - Whether it was unreasonable of the Council to have left the footpath as it was - Obligation of pedestrians to take care for their own safety - Whether any relevant difference between this and an ordinary public footpath. D

LEGISLATION CITED:

DECISION:
(1) Appeal upheld with costs (2) Orders of the trial judge set aside (3) Order Judgment for the appellant and order the respondent to pay the costs of the trial (4) Respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41132/03
DC 4/02
IPP JA
McCOLL JA
SPERLING J
Monday 6 September 2004

BATHURST CITY COUNCIL v NOELENE JANICE CHEESMAN

Judgment

IPP JA: The respondent was injured on 6 February 2000 when she fell while visiting the Bathurst swimming pool. She claimed that the injuries she had suffered were caused by the negligence of the appellant, the appellant being the owner and operator of the pool and its surrounds. Goldring DCJ upheld her claim and awarded her damages. The appellant appeals contending that his Honour erred in so doing.
The fall occurred at about 10.30am. It was a bright, sunny day. The respondent, then aged sixty one, was taking her grandchildren, aged about five and eight at the time, to the pool.
The appellant charged members of the public for admission to the pool. The respondent paid the entry fee for herself and her two grandchildren. Having passed through the entrance, she walked quickly with her grandchildren along a footpath towards a pool used by smaller children. While so walking she tripped, fell and hurt herself.
The footpath was constructed of concrete pavers. One of the pavers had an edge that was slightly raised by about 20 millimetres, described by one of the respondent’s witnesses as “somewhere less than a 20 cent piece”. The respondent tripped over this raised edge.
The respondent testified that as she was walking, she did not look down and she was not looking particularly at the footpath.
Mr Kelly SC who, together with Mr McKenzie, appeared for the respondent submitted that the difference in height between the pavers was not obvious.
It is plain that the differential was not regarded by those who used the footpath as being particularly remarkable. It was the type…

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.

Continue reading Bathurst City Council v Cheesman

Details

AGLC: Bathurst City Council v Cheesman [2004] NSWCA 308
Case: [2004] NSWCA 308
Decision Date: 6 September 2004

CaseChat Overview and Summary

Bathurst City Council (the appellant) appealed to the Court of Appeal of New South Wales against a judgment of the trial judge in favour of Mr Cheesman (the respondent). The dispute concerned an injury sustained by the respondent when he tripped on a slightly raised paver in a footpath located on land owned by the appellant. The respondent alleged that the appellant owed him a duty of care and had breached that duty by failing to maintain the footpath in a safe condition, thereby creating a tripping hazard.

The Court of Appeal was required to determine whether the appellant owed a duty of care to the respondent in relation to the condition of the footpath, and if so, whether that duty had been breached. Specifically, the court considered whether the raised paver constituted a tripping hazard, whether it was unreasonable for the appellant to have left the footpath in that state, and the extent to which pedestrians are obliged to take care for their own safety. The court also considered whether there was any relevant distinction between this footpath, situated on private land owned by the Council, and an ordinary public footpath.

The Court of Appeal found that the appellant did not owe a duty of care to the respondent in the circumstances. The court reasoned that the raised paver did not constitute a dangerous defect, and that the onus was on pedestrians to exercise reasonable care for their own safety. The court held that the appellant was not unreasonable in leaving the footpath as it was, and that there was no material difference between this footpath and a public footpath in terms of the duty owed.

Consequently, the appeal was upheld with costs. The orders of the trial judge were set aside, and judgment was entered for the appellant. The respondent was ordered to pay the costs of the trial and was granted a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

Orders

Orders of the court

(1) Appeal upheld with costs (2) Orders of the trial judge set aside (3) Order Judgment for the appellant and order the respondent to pay the costs of the trial (4) Respondent to have 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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Bathurst City Council v Cheesman [2004] NSWCA 308

Most Recent Citation

Horne v Gilshenan and Luton [2010] QDC 491

Cases citing this decision · 5 of 5 shown

Lisa Maria Maclean v Richmond Valley Council
[2025] NSWDC 189 Para 58

…Consistent with these observations are those made in Bathurst City Council v Cheeseman [2004] NSWCA 308, Ipp JA (McColl JA and Sperling J agreeing) said at [7] that a raise on the lip of a footpath by 20mm is a “type of every day minor hazard” that pedestrians are to expect and avoid. Ipp JA observed at [25] that t…
Bruce v Apex Software Pty Limited trading as Lark Ellen Aged Care
[2017] NSWDC 237 Para 8

…As was stated by the Court of Appeal in Bathurst City Council v Cheesman [2004] NSWCA 308 at [24], the case was not one where a person has fallen inside a shop or indoor commercial premises where the surface of the floor might be expected to be even. Here it was outside in an area shared by pedestrians and traffic…
Horne v Gilshenan & Luton
[2010] QDC 491

…(1980) 146 CLR 40 Other cases referred to by counsel Appo v. Barker & Ors (1981) 50 FLR 298 Bathurst City Council v Cheesman [2004] NSWCA 308 Boulter v Crouch [2010] QCA 258 Consolidated Broken Hill Ltd v. Edwards (2005) A Tort Rep 81-815 David Jones v Bates [2001] NSWCA 233 Dickson v Creevy [2002] QCA 195 Dickson…
Guides Australia Inc v McMartin
[2006] NSWCA 20

…us v Hawkesbury Shire Council (2001) 206 CLR 5121 and subsequent cases, in particular the decision of this Court in Bathurst City Council v Cheeseman [2004] NSWCA 308 applying such considerations in cases of occupiers liability.…
Bartolo v Owners of Strata Plan No. 10535 and 2 Ors
[2005] NSWCA 256

…y Amendment (Personal Responsibility) Act 2002 District Court Rules Pt 8 r11(3) Suitors' Fund Act, 1951 CASES CITED: Bathurst City Council v Cheesman [2004] NSWCA 308 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Buckle v Bayswater Road Board (1936) 57 CLR 259 Hastings Coun…

View all 5 citing cases →

Cases cited in this decision · 9 of 9 shown

Ryde City Council v Saleh
[2004] NSWCA 219 Para 23

…Ryde City Council v Saleh [2004] NSWCA 219 followed Burwood Council v Byrnes . Sheller JA (with whom Mason P and Tobias JA agreed) remarked (at [18]) that it was curious that the trial judge had referred neither to Lombardi v Holroyd City Council nor Burwood Council v Byrnes . I would make the same comment in this…
Francis v Lewis
[2003] NSWCA 152 Para 17

…In Francis v Lewis [2003] NSWCA 152 Mason P (with whom Hodgson JA and Tobias JA agreed) said (at [40]): “Foreseeability of risk of injury is not determinative of breach of duty of care … The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to…
Burwood Council v Byrnes
[2002] NSWCA 343 Para 19

…In Burwood Council v Byrnes [2002] NSWCA 343 Handley JA (with whom Beazley JA and Hodgson JA agreed) said (at [28]): “Pedestrians … are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for…
Lombardi v Holroyd City Council
[2002] NSWCA 252 Para 21

…In Lombardi v Holroyd City Council [2002] NSWCA 252 the plaintiff tripped over a concrete slab in the footpath which was twenty five millimetres higher than the adjoining slab on one corner. Hodgson JA observed (at [32]): “A plainly visible step of 25 millimetres in a footpath is [not] correctly regarded as high ri…
Campbelltown City Council v Frew
[2003] NSWCA 154 Para 18

…In Campbelltown City Council v Frew [2003] NSWCA 154 Mason P (with whom Santow JA and Tobias JA agreed) stated (at [33]): “The ultimate question remains whether the respondent established that the Council was unreasonable in not doing more than it did, assuming that more could have been done".…
David Jones Ltd v Bates
[2001] NSWCA 233 Para 16

…In David Jones Limited v Bates [2001] NSWCA 233 Davies AJA (with whom Heydon JA agreed on the issue) said (at [17]): “In the case of commercial premises, such as retail stores, and in the case of residential premises, the duty is more onerous than that which applies to a highway authority. Nevertheless, it remains…
Brodie v Singleton Shire Council
[2001] HCA 29 Para 20

…In Brodie v Singleton Shire Council (2001) 206 CLR 512, where there was a differential in height of about 50 millimetres between a concreted footpath and the earth on the side of it, Gleeson CJ observed that the fact that there was an unevenness in a road or footpath which could result in a person stumbling or fallin…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 13

…The legal principles applicable to the present circumstances are well settled. The trial judge cited the remarks of Samuels J in Phillis v Daley (1988) 15 NSWLR 65 (at 67) which remain an apt statement of the duty upon occupiers, namely “the current law requires an occupier of premises to take reasonable care for the…
Rasic v Cruz
[2000] NSWCA 66 Para 16

…t remains a duty to take that care which a reasonable person would take having regard to foreseeable dangers. As Fitzgerald JA said in Rasic v Cruz [2000] NSWCA 66 at [42]: `A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from th…

Legislation cited in this decision · 1

Suitors’ Fund Act 1951 (NSW)
2 mentions (from Para 27)