Bathurst City Council v Cheesman

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.